THINKING ALOUD: Is it time to restart the constitution review process? -2

Since the advent of multi-party democracy, there has been justifiable calls for a new Constitution. And these calls have precipitated in numerous attempts at Constitutional review, in the second, third and fourth phase governments. I shall attempt at a brief analysis and humbly propose way forward.

Historical Context

As alluded in my previous article, there were fundamental changes in the 1990s that put Tanzania on the road to conventional democracy. The re-introduction of multi-party politics prompted several amendments to the Constitution. This is the genesis for the calls for a new constitution. Our Constitution was promulgated on the basis of attaining a Socialist society under a command economy under a single party rule.

Piecemeal amendments has created a hybrid constitution that contains elements of both former dispensation and the latter. One of the most contentious matters especially amongst the opposition parties is Art. 41(7) which forbids presidential results to be contested in Courts of Law. Further, Art. 74(1) (a-c) which empowers the president to appoint senior officials of Electoral Commission, whose pronouncement of the winner cannot be contested anywhere. There is absolutely no basis to question the integrity of the senior officials at the Electoral Commission who are usually retired Justices of the higher courts in Tanzania.

In politics and justice, perception is reality. Thus it’s clear, even for those wearing yellow and green tinted glasses that reform is most definitely necessary especially concerning the above Constitutional provisions.

The Aborted Process

On the 26 April 2012, President Kikwete appointed a 32-member Constitution Review Commission under the Chairmanship of Judge Warioba. This Commission collected views from a cross section of society throughout the country, and submitted the first draft of the proposed constitution to the Vice President and the Prime Minister of the United Republic on 3rd June 2013. A second draft of the proposed Constitution was submitted to the President on 30 September 2013.

The President duly appointed 201 members from diverse groups including civil society, Academia and various pressure groups as well as Members of Parliament and House of Representatives to form 629 member Constituent Assembly which commenced work on 18 February 2014.

On the 16 April 2014 the Constituent Assembly was boycotted by the so called Coalition of the Defenders of Peoples’ Constitution known by their Swahili acronym Ukawa. In spite of this, a draft Constitution proposed by the Constituent Assembly was adopted on 2 October 2014 by attaining the constitutionally required threshold of two third majority votes from members of the Constituent Assembly representing both Zanzibar and Tanzania Mainland. The next step was holding a referendum for the people to adopt or otherwise.

There were a number of contentious issues, but the two most contentious were structure of the Union and the wide ranging Powers of the President. The Warioba Commission proposed a 3 tier structure as opposed to the current 2 tier Union. It also curbed the Powers of the Presidency by solidifying the principle of separation of powers. The majority of the proposed constitution was not contested and ironically it would have solved our current contention, the issue of the Independence of the Electoral Commission as well as allowing for Presidential election results to be contested in Courts.

However, both the Warioba draft and the Constituent Assembly draft dealt in my opinion with the fundamental challenge of the current Constitution, that is the confusion created by amending a one party state, socialist, Constitution by changing a few provisions. Both drafts categorically resolved this issue. The Powers of the Presidency and the structure of the Union can be the subject of a future amendment, if public opinion is strong enough to warrant it.

Proposed way forward

After the tensions caused by the UKAWA boycott, on 2 September 2014, President Kikwete convened a meeting in Dodoma with members of the Tanzania Centre for Democracy (TCD). This is an association of political parties that have MPs in Parliament. Those discussions came to a conclusion and agreement on four matters. First, the Constituent Assembly cannot produce a constitution to be used for the 2015 general elections given the limited time that remained before the election.

Second that the referendum on the new constitution be held in 2016 after the 2015 general elections. Third that the Constituent Assembly would last until 4 October 2014 as per Government Notice 254. And fourth that the 1977 Constitution be amended to facilitate the conduct of free and fair elections. Focus would have been placed on the creation of a truly independent National Electoral Commission and having a provision in the current Constitution that would allow challenging Presidential election results in Courts of Law.

Without re-inventing the wheel, the solution lies above. We can make the above amendments prior to the election so that not only would we have free and fair elections but it would also be seen by all and sundry that they were indeed free and fair.

After the above changes, we can even be bolder and incorporate the referendum of the proposed constitution on the same day as the elections of October 2020.

Each Citizen in Tanzania mainland would make four decisions instead of the usual three. Vote for President, Vote for Parliamentarian, Vote for Counsellor and Vote on the referendum for a new Constitution, in Zanzibar would be six votes. This would effectively deal with the cost element of a stand-alone referendum.