I have closely followed events of recent months, including reaction to President John Magufuli’s assertion earlier this month that his government does not view the need for a new constitution as a priority at this point in time.
I see very little substance in the argument that there is no need to rush towards promulgation of a new constitution and that the next logical step should be a referendum in which Tanzanians will either vote for or against the Proposed Constitution.
Being well versed in such processes both in Tanzania and beyond, I believe that it will be wrong to hold a referendum as the next step in the constitution review process.
The Proposed Constitution, a product of a fractious Constituent Assembly, is flawed both in terms of consensus and content.
First and foremost, the Proposed Constitution lacks the main pillar of a constitution in the making, which is the relation between the power of the people and how much of it can be vested in any administration. A key missing link is the lack of express provisions in the Proposed Constitution on whether elected representatives can be removed from office by voters between elections as initially provided for in Article 129 (1) of the Draft Constitution.
The Proposed Constitution also seeks to perpetuate the current state of affairs where the Executive wields immense powers over other pillars of the state, and this makes a mockery of the principle of separation of powers. Under articles 129 (1) and 131 (1), the President remains part and parcel of the legislature. This is not very healthy for a nascent democracy such as Tanzania.
Under the Proposed Constitution, the life of Parliament depends on the discretionary whims of the presidency. Articles 154 and 155 state that the President shall determine the date on which the National Assembly shall convene for its first sitting after an election. This makes it impossible for Parliament to meet for the first time without the President’s express approval.
Any hope that the President will in the future be reined in by effective checks and balances outlined in the statutes is quashed by Article 155 (3), which gives the Head of State the discretionary authority to convene a sitting of the National Assembly any time outside its normal schedule.
Worse still, the Executive will continue to be the source of most bills to be tabled in Parliament and the President must assent to all bills before they become law. Furthermore, 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.
The principle of separation of powers is further undermined by the Proposed Constitution, which seeks, by way of Article 116 (1) (d), to retain the current system where Cabinet ministers are appointed from among MPs.
The Proposed Constitution is also problematic when it comes to ethics for public leaders and civil servants. Many provisions that were aimed at ensuring the highest ethical standards for public leaders were expunged from the Draft Constitution. They included clauses prohibiting the opening and maintaining of personal offshore bank accounts; election treating (implying directly or indirectly providing such items as food, drinks, clothing or entertainment aimed at influencing voters) and receiving gifts exceeding the legally prescribed threshold.
What is going on in the United States right now offers some lessons on conflict of interest and how it can be avoided. There are a number or pertinent questions following the election of Donald Trump as the 45th President of the United States. How can the Donald Trump in Trump Tower be distinct and separate from the Trump in the White House? How can the Trump family run the Trump business empire without the influence or fear of Trump the president?
Back home, how can a son or daughter of a president run a business without being perceived to be getting favours from State House? This and similar questions are supposed to have answers in the Proposed Constitution, which, unfortunately, is not the case.
The Proposed Constitution is a deficient document as far as human rights, term limits, election management and corruption and bribery are concerned. This needs to be put right before we start talking about a referendum.