TALKING POINT : Why ultimate power ought to be vested in the people

What you need to know:

  • Questions are lingering in the minds of Tanzanians as far as the process and content are concerned. Where are we in this process? How good or bad is the Proposed Constitution?

The nation will soon be going back to the debate on completing the process towards a new constitution for Tanzania, which has been on recess since before last year’s General Election. Questions are lingering in the minds of Tanzanians as far as the process and content are concerned. Where are we in this process? How good or bad is the Proposed Constitution?

Structurally, the Proposed Constitution has a total of 19 chapters, 296 articles and three appendices. Content-wise, the Preamble and Chapter One dwell on the name, delimitations, symbols and the underlying principles and ethos of the nation. Chapter Two is about the powers of the people, supremacy of the Constitution as well as prohibition of its breach. In addition, chapters Three and Four provide for the main vision, mission and objects of the constitution. What are the contents of the remaining chapters?

According to Article 124, ultimate power shall be vested in the people. Leaders, professionals, politicians and all the others shall get such power from the citizenry. Articles 143(1) and 97 (1, 2) indirectly make it possible for the removal of non-performing elected representatives and politicians where situations require. However, the main issue in relation to the power of the people in the constitution of Tanzania since independence has been that of the modus operandi of how such vast public power can be exercised over elected leaders and politicians between elections. The missing link seems to be the lack of express provisions as to how such leaders can be directly removed from office through the power of recall as was provided for in Article 129 (1) of the Warioba commission’s Draft Constitution.

As far as separation of powers is concerned, it is true that from the face of it, the Proposed Constitution separates the functions of the Executive, Legislature and Judiciary. These are structurally provided for under chapters 8, 10 and 12, respectively. In addition, there is an attempt to distribute the appointment powers vested in the presidency for key positions in the Judiciary to include recommendations from within it. This is the case with Article 205 (2) in which there is a judicial service commission responsible for recommending names for key presidential appointments to the Judiciary.

Even with the Legislature, there is a guarantee of independence of debates and deliberations as well as immunity from the deeds and happenings in the House. These parliamentary privileges and immunities are provided for under Article 159 of the Proposed Constitution. As regards the independence of the Judiciary, the Proposed Constitution makes a positive attempt under Article 175 to provide for compulsory recommendation of three names by the Judicial Service Commission (JSC) for the President to consider in the appointment of the Chief Justice. Best practice would further require that there is parliamentary vetting of the name to be finally appointed by the President.

However, there seems to be a continuation of the executive having excessive powers over the legislative and judicial branches of the state. For instance, under articles 129 (1) and 131 (1), the President remains part and parcel of the Legislature. Interestingly, the life Parliament also depends on the President’s whim. For instance, under articles 154 and 155, the President shall determine the date on which the National Assembly shall convene for its first sitting after an election. Also, under Article 155 (3), the President may convene a sitting of the National Assembly at any particular point in time outside the normal schedule of Parliament. In addition to that, the executive branch is the source of most parliamentary bills and the president must assent to all bills before they become law.

In case of disagreement on a bill between the National Assembly and the President, the latter may dissolve the former in accordance with Article 137 (6) of the Proposed Constitution. Similarly, the principle of separation of powers is shaken by the fact that the Proposed Constitution perpetuates the system in which Cabinet ministers are appointed from amongst MPs [see Article 116(1) (d)]. This arrangement has drawn criticism for maintaining blurred lines of responsibility between Parliament and the government.

In the same vein, the Proposed Constitution lacks a provision that prohibits the doubling of one person as MP and regional commissioner or district commissioner. Article 18 (5) of the Draft Constitution had managed to do away with the possibility of this conflict of interest by forbidding members of one branch of the state from serving in a capacity of another branch. Specifically, this article had outlawed MPs from serving as leaders or members of parastatal and agency boards.