TALKING POINT : Katiba process may have stalled, but not all hope is lost

I accepted an invitation to attend a programme on constitution building experiences in Africa, currently taking place at the Central European University in Budapest, Hungary.

The summer session brings together expert academics and practitioners from across the world whose interest revolves around what has transpired and continues to unfold in constitutionalism and constitution building in Africa.

It is an annual event that revisits and reflects on Africa’s experience in building constitutions. I discussed in my presentation Tanzania’s experience so far in attempting to come up with a people-centred constitution.

In particular, I spoke about the most recent process, which has been a matter of global debate as to whether it is should be understood as a success or failure as far as constitutional democracy is concerned. The process grinded to a halt in 2014, and what really happened is still a matter of conjecture.

Tanzania (starting with Tanganyika) inherited its first constitution from British colonialists. Our first supreme law was drafted in London and handed over to Tanganyika on a silver platter at independence.

What can be debated is the extent to which Tanzanians were involved in the making of subsequent constitutions, not the first one back in 1961.

It is well documented that the first constitution was drafted in the UK and brought to the Karimjee conference in March 1961 when it was approved in less than two days. A process to rewrite the Tanganyika constitution was initiated only one month after independence on December 9, 1961.

One year later, the country adopted the Constitution of the Republic of Tanganyika. However, it was debatable whether that name was apt because the time it took to draft the constitution and consultations were not sufficient to warrant democratic participation in the making of a republican constitution.

Similarly, the union arrangement in 1964 was adopted after minimal public consultation and participation. Hence, both the Articles of the Union and the Union constitution to a large extent reflected the ideas of the leaders of Tanganyika and Zanzibar.

The Interim Constitution of 1965 further curtailed constitutional liberties and basic rights. It was initially meant to be in force for about one year, but lasted 12 long years before a commission chaired by Sheikh Thabit Kombo was appointed to write a new constitution.

The Kombo commission, which comprised 20 members – ten from either side of the Union – consulted only superficially before paving the way for the adoption of the Constitution of the United Republic of Tanzania in 1977.

The current constitution has been amended at least 14 times, and this points to lack of the people’s participation in the making of the original document in 1977. What the Kombo commission did was go through the motions of gauging public opinion.

It thus came as no surprise when Tanzanians welcomed with open arms the launch in 2011 of the process of rewriting the constitution. Some of us in academic and civil society circles saw this as the last chance for a constitutional revolution of sorts.

Little did we know that the process would come to a shuddering stop three years later. Even worse is the fact that it is not known when the review will resume.

I said in Budapest that part of the problem the Tanzanian process was facing was that it had been hijacked by ruling party apparatchiks, and it was thus impossible to tell what its fate is likely to be.

Perhaps we should have known that the process was already dead in the water even before it began after it became apparent that it depended on the President’s goodwill.

President Jakaya Kikwete initiated the process in 2011, but his successor, Dr John Pombe Magufuli, has made it amply clear that the rewriting of the constitution is not among his priorities. In the current setup, there is no way the process can be restarted without the President’s express approval.

On a more positive note, however, the Tanzanian process has been hailed for being broadly participatory and inclusive, at least during the stage overseen by the Constitutional Review Commission, thanks to civil society, led by Jukwaa la Katiba Tanzania, which demystified constitution-building.

The Budapest gathering recommended that this notion be further researched and documented for replication elsewhere in and beyond Africa.

It is still not clear whether or when the process will resume, and it is time constitutional democracy advocates across the globe helped to champion a citizen-led push for a new constitution in Tanzania.

We could start by constituting a committee of experts (CoE), which will harmonise the “Warioba” and “Chenge” drafts to be followed by a referendum. On this front, we could borrow a leaf from neighbouring Kenya’s book.