INTEGRITY FIRST : Why proposed constitution makes no significant difference

The Supreme Court of Kenya has shocked the whole world following its historic decision of September 1, 2017, which nullified this year’s presidential election held on August 8, 2017.

The Supreme Court’s ruling proved to Kenyans, East Africans and all Africans and the world at large, the necessity of independence of judiciary, which is the product of a firm and liberal constitution of Kenya of 2010.

For an African court to reach such a decision of majority in annulling presidential election results is quite a novel decision, which was not only anticipated by the legal fraternity and election stakeholders, including the president elect, but also the petitioner himself. All in all, that ruling is a total proof that the Supreme Court of Kenya is fully independent and its Justices are persons of high integrity.

The Constitution of Kenya of 2010 reasonably separates three main pillars of the state viz the executive, legislature and judiciary better than Tanzania’s Constitution of 1977 does. Had Kenyans not have in place the new Constitution of 2010, the Supreme Court wouldn’t have reached the ruling it made, a decision that shows Kenyans now have the best Constitution, which they fought for almost for 20 years. On the other hand, the ruling too has reminded Tanzanians how shameful our Constitution of 1977 is and how the Proposed Constitution of 2014 won’t make any significant changes either after being voted for to be the Permanent Constitution of Tanzania compared to Kenya’s Constitution of 2010.

It’s a shameful for Tanzania to continue with the Constitution of 1977

In a nutshell, the current Constitution of Tanzania of 1977 does not allow presidential election results to be challenged in court (Article 41(7). That is so awkward in this era of multiparty democracy! Nevertheless, the Tanzania’s Proposed Constitution of 2014, which was the product of Chama Cha Mapinduzi (CCM) based Constituent Assembly (CA), does allow the presidential election to be challenged in court, but the entire document still cannot meet democratic and liberal levels of the Constitution of Kenya of 2010, except in few areas. However, the then Constitutional Review Commission (CRC) under the chairmanship of Judge (retired) Joseph Warioba, prepared the best Draft Constitution, which if it had been adopted by the CA, it would have been just like Kenya’s Constitution of 2010 almost in all areas.

While the Constitution of Kenya has what we can call “reasonable separation of powers among the three pillars of the state”, the Proposed Constitution of 2014 has retained the status quo as it is in the current Constitution of 1977 in which the executive and legislature meet together in the National Assembly. Thus, the CCM-based Proposed Constitution of 2014 has no separation of powers between the executive and legislature (Parliament). Likewise, the judiciary of Tanzania, although we can say that it is somehow independent, like that of Kenya. The difference is how judges are appointed.

Kenya’s judiciary is more independent than Tanzania’s

In Kenya, the President has no direct influence in the appointment of Chief Justice and Deputy Chief Justice. In Tanzania, the President can influence the appointment of Chief Justice and all Judges in a number of ways despite the fact that, we have the Judicial Service Commission. A good example is the appointment of Acting Chief Justice (Ag CJ). For the judiciary that has been in place for more than five decades after independence, it is a shameful act to have Ag CJ in office for almost nine months since the retirement of the CJ in January this year.

This is the direct control of the judiciary by the President. By and large, Tanzania had no reason to have Ag CJ had we have a proper Constitution, which properly guarantees the independence of the judiciary. Such embarrassment on the judiciary cannot happen in Kenya under the Constitution of 2010.

The independence of the judiciary is also exercised in all democratic societies. The Constitution of Kenya of 2010 [Article 160(1)] recognises the independence of the judiciary just as it is in Tanzania’s Constitution, 1977. With such guarantee of the independence of the judiciary, citizens must always walk with confidence that their rights are constitutionally protected and courts are free to do administer justice without interference from any person or institution.

While the structures of the judiciary of these two countries is almost the same, there is, however, a difference in the appointment of judges. While in Kenya the appointment of Chief Justice and his deputy are subject to approval by the National Assembly (Article 166 ), in Tanzania the appointment of all judges does not need approval of Parliament just as it is for all appointments he is constitutionally empowered to make.

The President under the current Constitution of 1977, which is not different from the Proposed Constitution of 2014, has direct influence to the judiciary because the Judicial Service Commission is a mere advisory commission, whose advice can simply be refused by the President and direct otherwise. Thus, even if we go ahead and approve the CCM-based Proposed Constitution still Tanzania’s constitutionalism will never reach Kenya’s as regards the independence of the judiciary or the separation of powers.

Simply speaking, we have lost our resources for nothing in the constitution-making process. Both the Chief Justice of Kenya and his deputy, after appointment by the President, must be approved by the National Assembly before taking office oath. In our case, they are appointed by the President after being recommended to him by the Judicial Service Commission.

Nyerere respected the independence of the judiciary under the Constitution of 1977

Constitutionally, the judiciary is the third branch of government, which functions on the doctrine of the independence of the judiciary, means that the judiciary must be free from the influence of either the executive or legislature. Certainly, the independence of the judiciary has been respected by almost all governments since colonial times. Nevertheless, the first President of Tanzania, Mwalimu Julius Nyerere, once said this about the judiciary:

“Our judiciary at every level must be independent of the executive arm of state. Real freedom requires that every citizen feels confident that or her his case will be impartially judged even if it is a case against the Prime Minister himself”. Thus, Mwalimu Julius Nyerere was one of the very few African leaders, who respected the independence of the judiciary. Does incumbent President respects the independence of judiciary just like Mwalimu and other did?

The independence of the judiciary is not a mere theory to be learnt at schools. It is constitutionally recognised. The current Constitution of Tanzania of 1977 (Article 107B )states: “In exercising the powers of dispensing justice, all courts shall have freedom and shall be required only to observe the provisions of the Constitution and those of the laws of the land”.

This provision on the independence of the judiciary is retained and its wording has been improved in the Proposed Constitution [Article 169 (1)], but the problem of Tanzania lies in the wording of its Constitution. Since the President is the one, who indirectly appoints judges, it is the one, who determines the independence of the judiciary as Nyerere did.

Separation of powers in Kenya and Tanzania

The Kenya’s Constitution of 2010 has reasonably reduced and put in check presidential powers. The appointing powers of the President of Kenya are well-controlled by other institutions like the National Assembly, while the CCM-based Proposed Constitution has retained the same powers as are in the current Constitution of 1977 in which most of the presidential appointments need not any approval from any institution. Kenya’s National Assembly has constitutional powers to crosscheck some of the presidential appointments and has powers to approve or disapprove presidential appointments.

The Proposed Constitution has shouldered on the president all powers even appointments of local government directors except the Prime Minister, whose appointment needs approval of the National Assembly.

Areas of the Proposed Constitution, which can be said are similar to the Constitution of Kenya are an addition to the Supreme Court (Article 171), the Independent Electoral Commission (Article 217), independent candidacy in all elective political posts (Article 216) and challenging of presidential election results in the Court (Supreme Court [Article 173 (1) (a) (i)].

These four articles would easily be included in the current Constitution of 1977 vide the constitutional miscellaneous amendment legislation only because they cannot be justification for the new Constitution, while the rest of the contents of the Proposed Constitution, which are simply reproduction of the contents of the Constitution of 1977.

It was useless to have a constitution-making process for almost three years spending billions of shillings, which would have been done vide a simple Bill. This shows how CCM leadership has not been patriotic enough in making Tanzania a great nation by giving Tanzanians the best Constitution they wanted through their views given through the CRC. Had the national leadership interest for the country to have a new Constitution that time that was allocated for the entire process was enough to give Tanzanians a new Constitution even before the General Election of 2015.

Even retired President Jakaya Kikwete, who initiated a motion for the new Constitution eventually became a stumbling block, when he stubbornly opposed the Draft Constitution in the National Assembly in 2014.

From the foregoing, there is no hope Tanzania will get a new consensual Constitution at least at the level of that of Kenya, which seems so liberal and democratic enough to create the Parliament, which is independent from the executive and the judiciary, which is independent to the extent that it can nullify presidential election results.

The author is a lawyer/journalist. He can be reached at [email protected]