One name that has been lamented for not making it to the constitutional rewriting team is acclaimed university law don Prof. Issa Shivji, and this omission also serves to clarify the style – or the philosophy – of the selection of those who made it to the list.
As they were picked from lists provided by various groups in society, it is conceivable that the president opted for other nominees from those lists – and it is also curious if indeed Prof. Shivji was the topmost name in either or any of those lists. The don may be the most forthright teacher in constitutional review issues, but not leader of a specific body politic.
In other words, those who made it to the list aren’t remarkable for the brilliant law ideas they have, for scarcely any of them can rival Prof. Shivji (aside from commission chairman Judge Joseph Warioba and team member ex-Chief Justice Augustino Ramadhani).
So, Prof. Shivji is not in the list because he is overly represented by those enlisted in the team, for instance those from opposition parties, and still from among women’s groups, or from the disabled. In all those areas Prof. Shivji is a sort of lead star, one who helps social groups clarify what they want by checking it with his ideas, not that he leads them.
The key issue in nominating an individual to the team is that such a person is likely to report back to a given social group, and once he or she expresses agreement with that the team was doing or options it was picking from still other suggestions, he or she is likely to obtain their loyalty.
That means the members are ambassadors of the various social groups in relation to what they want in the constitution, and then they become envoys of the commission to society at large, to explain the rationale of its work. The point is that each line of sentiment will have to be carefully examined, and the ruling be adhered to.
There is no question that there is a neat balance of people, or rather experts, from various social groups, where opposition parties more or less were treated as social groups. In the latter accord some space was provided on the basis not just of being in those parties but expert enough to make the group.
That is why it was a bit difficult to find a clearly marked individual from the Civic United Front, but at the community level, as they are mostly from Pemba, they could relish the presence of CCM elder Dr Salim Ahmed Salim. The team is a cross-cutting involvement at an ethno-political level, not by party rigidities.
A similar instance of ethno-professional belonging would be the nomination of veteran lawyer and sports administrator Said Hamad El-Maamry, which one newspaper report mentioned him as Alhaj, though indeed there are several bona fide alhaj card holders in the list.
This Al Haj title makes him also capable of representing the CUF indirectly, while he also represents the police force to which he once belonged, and not surprisingly he is also an elder of a portion of the Arab community in Dar es Salaam. They will definitely relish his presence in the team, and can confide in him what their sentiments are.
That is why the two clearly marked officials of political parties need to be seen more in their academic and professional capacity, and their political affiliations or responsibilities merely constituting a bit of assurance that they will help to inculcate affinity with commission decisions, or options they pick.
If Dr Edmund Sengondo Mvungi lays the case for accepting that the commission decides, or what chairman Justice Warioba specifically rules in relation to an objection say by Dr Mvungi, NCCR cadres will listen to him as they have no better representative, a more capable fellow. The same applies to Prof. Mwesiga Baregu in Chadema; once he says that a certain concession couldn’t realistically be extracted, that is it.
In other words there are two groups from which the president did not pick any direct nominees, for they are overly represented by other nominees, for that matter the ruling party, CCM as well as women as a whole.
Those picked have other caps on the head, for instance both Justice Warioba and his colleague Justice Ramadhani are keen CCM people but they represent the institutional cohesion of the process of writing a constitution, while Dr Salim is scarcely a spokesman of CCM in a proper sense of the term. Still, the Mwalimu Nyerere Foundation executive director Joseph Butiku will not be representing his entity as such but the breadth of CCM dissidents – and Mwalimu Nyerere stalwarts of various shades or loyalties.
Equally marked are women team members Esther Mkwizu and Al Shayman Kwegyir, that they will only be indirectly be representing women but more accurately their professional or social groups, hence the private sector for Ms Mkwizu, and the disabled for Ms Kwegyir.
Also noticeable in the same manner is Zanzibari noted feminist Salma Moulidi, who in that sense has at least three caps to her membership of the team, first as an advocate of women’s rights, and then also as a Zanzibar woman, where the issues are slightly different from the Mainland – before one comes to the women’s section of a political party she would be hailing. So it’s the professional side which is hegemonic in representation and thus loyalty.
While it is altogether evident that President Kikwete did a good balancing act as to the membership, that is, brought all notable representatives of various social and political groups, it will be a different matter to get them to sculpt a cohesive document, with identical intentions from start to end.
That is where the genius of forming a constitutional review commission comes up, that were the matter to be dispersed among social groups, at the end there would arise contending blueprints which already have adhesion or loyalty of the various communities putting them up, and that brings up some chaotic scenes if unchecked. Forming a commission compels commission members to accept the chairman’s rulings….
In that case the democratic element or the guarantee as to the validity of the constitution to be drawn up is the fact that these other ideas were ably represented and views raised listened to, objected to by other members, and ruled upon by the chairman, or his deputy in case of absence.
As the team is ably representative, chaired by the best jurists in town, no one shall have a pretext for going back to his or her community for ‘further directives’ in relation to this or that demand that is not or wasn’t in the course of being endorsed by the commission.
When a member differs from the commission, the state can take care of the challenge, but if members of that section of society weren’t ably represented in the work of the commission the government would find it hard to raise a charge of sedition if dispute arises.