REFLECTIONS on President Samia's directives to 'stop hijacking' the constitutional debate "Stop hijacking the constitutional debate" so ordered President Samia Suluhu Hassan, in a powerful speech addressing the 'National Political Council' and other democracy stakeholders, in Dar es Salaam on Monday, 11th September, 2023.
She also expressed her great concern over the emerging moral decline among sections of politicians. "Politicians who carelessly go about breaking the code of conduct were polluting the political environment", she said.
The President added this pointed observation: "Politicians have a role to play in creating awareness of the country's constitution . . . we shouldn't go about rallying Tanzanians to demand a new constitution, when they are not even familiar with the current one"; so said President Samia in her address.
The President's criticism of politicians "who go about rallying Tanzanians to demand a new constitution, when those people are not even aware of the contents of the current constitution", is what actually motivated me to write today's presentation, for I felt I should make a little contribution in support of the President's expressed views on these two issues; namely,
(i) that of "politicians rallying Tanzanians to demand a new constitution"; and
(ii) the contention that "those people are not even aware of the contents of the current constitution. I propose to do so by giving information which is based on my own practical experience. The expression "rallying the people to demand a new constitution" as used in this context, has some negative connotations; in the sense that it implies misguiding the people to demand a new constitution when it is unnecessary, or there is no need for it.
This must be differentiated from the positive actions of "involving the people" in the constitution-making process for new constitutions which were being taken by the government during the period of the "one-party" governance system whenever the need arose for doing so.
And, in our case, such need for enacting a 'new' constitution, has arisen on only two occasions:
(a) where there was a change of sovereignty, such as the new Tanganyika Republican Constitution of 1962, which represented a fundamental change from that of British sovereignty over Tanganyika, to a new Tanganyika sovereignty.
And (b) where there was a merger of sovereignty, between the separate sovereignties of Tanganyika, and Zanzibar, in 1964. Other countries have made new constitutions for different reasons, such as in the case of the Republic of Uganda in 1985, where the previous constitution had been abrogated by the dictatorial regime of President Idi Amin Dada following his removal from power; and in that of the Republic of South Africa in 1994; which had to enact a new constitution to cater for the new democratic country of South Africa, after the defeat of the previous obnoxious apartheid regime under the Boers.
Reflections on the issues identified by the President Issue one: the problem of "politicians rallying the people to demand a new constitution".
This problem actually emerged only after our transition to the multi-party political system. As we have already stated above, the exercise of making 'new' constitutions in our case, has taken place, depending on the needs and requirements of the relevant time periods.
And, in each of those cases (where the prevailing circumstances permitted), the constitution makers have invariably undertaken to involve the people of Tanzania in the making of those new constitutions; with the exception of the 1964 "interim constitution" of the United Republic of Tanzania; which was enacted under unusual circumstances which did not permit the involvement of the people in its making.
The first 'home-made' new constitution, was the Tanganyika Republican Constitution, of 1962. Similarly, there was no opportunity for involving the people of Tanganyika (now Tanzania Mainland) in the making of the 'Independence Constitution' of 1961, for the reason only that the said constitution was made by the outgoing British colonial Administration, and was enacted by the British Parliament in London, and only imported into the country as a "finished product".
This was British common practice which was applied to all countries that, at one time or another, were part of the then very vast 'British Empire'.
That is precisely why the Tanganyika Republican Constitution of 1962 became the first one to benefit from the application of the principle of involving the people, or "peoples' participation", in the constitution making' exercise.
The strategy which was adopted for use in involving the people was the appointment of a Presidential Commission which was tasked to "collect the people's views and opinions, regarding the kind of constitution they wanted.
However, it is particularly worth noting that in her speech that is under discussion, the President purposely referred to "politicians". It may therefore be helpful to point out that there is a distinction between the 'ordinary members' of a political party, and its (active) "politicians"; namely its elected leaders.
The word "politician" essentially relates to, or is connected with, the concept of political parties; for political parties normally consist of:
(a) the ordinary members, whose number may reach several millions, as in the case of CCM; and
(b) the party leaders, whose numbers will normally be small, as they are elected to represent specified areas or sections of the party's network. The party leaders are the real 'politicians' It must be acknowledged that Political parties are absolutely essential for the successful functioning, or performance, of the "Parliamentary system" of government which we inherited from the British at the time of independence.
As may be generally known, this system operates on the basis of the principle which provides that "the political party that wins the majority of the parliamentary seats at a general election is what earns the right to form the government".
But, in addition, political parties have several other basic functions to perform that are beneficial to the community; such as providing a stable base for the government of the country to operate effectively; because it will be implementing the promises which were made to the people by its party in its 'Election Manifesto', which were fully explained to the people during the election campaign period. Political parties also provide a suitable forum for the participation of its individual members, without subjecting each of them to engage himself personally in continuous articulation of his general interests; which, he confidently knows, will be safeguarded by the leaders of his political party; as actually happened in the matter of the transition to the multi-party system; when 80% of the people who were interviewed by the Nyalali Commission, expressed their views by opposing the proposed change. But this was based mainly on ignorance of the multi-party system operates.
Thus, the ruling party came to their rescue (to safeguard their basic political interests), and very wisely went ahead to implement that change.
As the Nyalali Report discloses, their opposition to the change was based almost entirely on the phenomenon that is generally described as "fear of the unknown"; which means that because they had no experience whatsoever of how the multi-party system actually operates, they entertained the unreasonable fear that it would bring with it "unnecessary chaos and social disturbance". In view of which, so they argued, the multi-party option should best be avoided.
Regarding this matter of "demanding a new constitution"; I must admit that even without listening to the campaigners for 'a new multiparty constitution', I was personally of the view, that after thirty years of governance under the 'one-party' system, this change to the multi-party system was a fundamental change, which qualified for the enactment of a new constitution; and I actually made that observation in my book titled: "The Transition to Multipartysm in Tanzania" (Dar es Salaam University Press, 1995).
But the Authorities were of a different opinion, and opted for making the desirable changes in the existing constitution. Issue two: the problem of "lack of awareness" of the present Constitution's contents. This is, is, indeed, a matter of great importance and significance; and It now reminds me of the lines in William Shakespeare's Julius Caesar: in which Julius Caesar is warned by the soothsayer who tells him: "Beware of the ides of March".
But Caesar unwisely dismissed the warning by saying: He is a dreamer, leave him alone". The contention that the majority of the people in our jurisdiction "are not aware of the contents of the constitution" is indisputable; because that is precisely the prevailing situation. And, unlike Caesar's story, these words are certainly not those of "a dreamer, who should be left alone".
And furthermore, the people cannot be blamed for this state of affairs, simply because there has been no organised plan, or programme, for imparting such awareness to the general public. But, more realistically, considering the legal nature of the country's constitution, that it is the fundamental law of the land; it must be appreciated that in practice, and in fact; no ordinary citizen is expected to know the contents of any of the numerous laws of the land.
Thus, the 'fundamental law' cannot reasonably be excluded from this general "ignorance of the law". Defining the constitution The books of authority define the constitution as the basic, or fundamental law of the county, which lays down the country's Executive, Legislative, and Judicial institutions. It describes the functions of each of these institutions, and provides for the distribution of powers among them. It also describes the structure of each of these institutions, and the relations between them".
The constitution of the United Republic of Tanzania fits exactly into this definition; which appears simple enough for anyone to understand; for it simply means that any "new" constitution will have to establish these essential institutions of the country's governance. In that case, why should we undertake to travel the long route of enacting a new constitution, which requires the setting up of a "Constituent Assembly" to adopt it; when in fact, any new political requirements can be easily accommodated by Parliament in its ordinary session, as amendments to the existing constitution?
That appears to have been the CCM argument all along, until President Jakaya Kikwete of the 'fourth phase' government entered the stage; and decided to accept the demands for a new constitution, when he set in motion the process of achieving that objective.
These opposition parties' demands also included suggestions for the methodology to be used in that exercise. Some of the parties had expressed the view, that "an all-party constitutional conference, consisting of representatives from all the fully registered political parties, should be convened and given the mandate to decide on what should be included in the proposed new constitution".
While other groups and individuals strongly advocated the holding of a referendum, in order to give the peoples' consent and approval to the new constitution.
For example, Professor Mgongo-Fimbo of the University of Dar eas Salaam, wrote the following in his public seminar Paper:- "For thirty years, the people of Tanzania have been governed under constitutions made for them, thus denying them their entitlement to make their constitution themselves".
President Jakaya Kikwete seems to have been influenced by Professor Fimbo's comments; for he introduced this referendum procedure for the first time in our constitution-making history; which has been the sole cause for the delay in completing his 'new constitution' initiative.
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