TALKING POINT : Proposed Constitution falls short of guaranteeing gender parity

Debate on the constitution review process is gathering pace. The opposition ACT- Wazalendo earlier in the week held its National Democracy Conference whose focus was constitutionalism.

At the meeting, where I was invited as a resource speaker, experience was shared with neighbouring Kenya and the DRC. The leader of the newly established Labour Party in Kenya, Mr Ababu Namwamba, spoke eloquently on the possibilities in the constitution review process in Tanzania.

Chama Cha Demokrasia na Maendeleo (Chadema) announced a new campaign for the resuscitation of the constitution review process in the country. The Tanzania Human Rights Defenders Coalition led NGOs in debating the possible options in restarting the process as part of events leading to this week’s 17th anniversary of Mwalimu Nyerere’s death. However, the gender discourse is largely missing from this hullabaloo.

The quality of a constitution partly depends on the level and extent to which gender issues are captured and addressed. The Constitution of Tanzania (1977) already captures a great deal of traditional gender issues. It was expected that the Proposed Constitution would fully guarantee latest notions of gender equality and parity. How far has this been achieved?

From the outset, the Proposed Constitution makes an attempt to advance the rights of women and minority groups. The first paragraph of the preamble through to the end make various proclamations to the effect that Tanzanians shall be entitled to equality and equal rights regardless of indices, including sex. In addition, it is provided for that access to, control over and ownership of resources in the United Republic of Tanzania (URT) shall be without regard to tribal, religious, racial and gender discrimination.

In particular, there is a guarantee for the first time under Article 23 (2) (d) that every woman in the URT shall have the right to access, own, use, develop and manage land in the same manner and conditions as their male counterparts. This has the potential of addressing the problem of gender discrimination, which is a dominant feature in patriarchal communities.

Also, the Proposed Constitution has specific provisions that guarantee gender as part of good governance. For instance, Article 6 (2) provides that good governance in the URT shall imply that the principle of gender equality is paramount [see Article 6 (2) (g)]. Article 8 (2) makes a commitment that all forms of discrimination in the URT shall be void. This includes intimidation, oppression and gender-based violence [Article 8 (2) (h)]. Regarding the right to work, women and men shall have equal opportunity to work, regardless of gender and/or sexual orientation [Article 8 (2) (h)].

Furthermore, the proposed statutes prohibit discriminatory acts in the course of filling elective and nominative positions across Tanzania. For instance, Article 12 (1) and (2) make it a political obligation that Tanzania shall be a democracy that observes all sorts of non-discrimination of one person against another or one group against others. In this regard, the Proposed Constitution makes it compulsory that men and women in the URT shall have equal rights to be elected into representative institutions. Hence, Article 129 (4) spells out that the election of MPs shall take into account the principle of equal representation between men and women, implying that the legislature shall observe gender parity. On civil service appointments and recruitment, the document requires that hiring must be done on the basis of merit, skills, professionalism and gender equality [Article 208 (1) (c)]

Legislatively, it remains unconstitutional for any law in the URT to grant, omit or restrict rights on the basis of genetics, status, creed, religion, tribe or sexual and gender origin in accordance with Article 63 (4) of the Proposed Constitution.

On the other hand, the expectation that modern constitutions would not be complete without a set of “new rights” has evaporated. Conversely, the Proposed Constitution is silent on these rights, leaving room for legal interpretation or misinterpretation of such rights. For instance, it remains unanswered when exactly life is deemed to have started insofar as reproduction is concerned.

Under the Second Draft, the election of MPs was such that each constituency would be electing a male as well as female parliamentarian in line with Article 113 (3), which, if adopted, would have ensured 50/50 gender representation in the National Assembly.

The Proposed Constitution also falls short of guaranteeing political rights and entitlements of people in disability (PIDs) and people living with HIV and Aids. This also juxtaposes with the Draft Constitution’s Article 113 (1) (b), which provides for the appointment by the President of Tanzania of up to five PIDs to Parliament as part of observance of the principles of equality in terms of gender and Union representation. Regarding the ten MPs to be nominated by the President, the Proposed Constitution drops the gender parity component provided for in the 1977 Constitution’s Article 66 (1)(e) requiring that at least five out of the ten nominees be women.