Top officials of the leading opposition party, Chadema, were recently heard objecting to the set of proposals which the ruling party has released which are meant to be the party’s input to the Constitutional Review Commission regarding the new constitution.
The reason is that the ruling party objects to raising certain issues for discussion with a view to revisiting their legitimacy, principally the very existence of the United Republic, and the structures of the state, namely the separation of powers comprising an independent judiciary, unicameral legislature, etc.
It conceded however that the powers of the president be subject to discussion, as well as challenging declared presidential results in court.
Chadema’s criticism was based on the fact that the ruling party, whose national chairmen is the union president, was now gagging the commission about what should or should not be discussed, whereas it is everyone's right to discuss what they feel they want the new constitution to contain.
Radicals were more or less united behind that view, and in some quarters there was even talk about demonstrations, which singularly failed to take note of the logic Behind CCM’s intervention, though, to some extent, they had some reason to worry, as CCM isn't just a group of stakeholders like the rest.
It has an institutional position that gives it an aura of 'primus inter pares (first among equals), in which case when the 'first' among us has staked their dignity on an issue, why debate it?
What is also noticeable is that the sort of position given by the ruling party is the proper and rightful sentiment of most senior office holders not only in CCM but in the government as well.
That is why both Justice and Constitutional Affairs minister Celina Kombani and Attorney General Frederick Werema rejected the idea of writing a new constitution as, in the final analysis, there are a number of area which cannot, at least in the CCM comprehension of things, be put to question, or efforts be made to rewrite those areas, wholly or in part, especially the first two, but also the powers of the president, and perhaps one or two other items. The rest, put together, cannot really constitute a 'new constitution,’.
For those who remember Mwalimu's 1995 campaign where radicals of all hues wished that he not get involved in the actual campaign but rather play the role of a 'loving father' to all his children, to citizens of the still very young democracy clarifying the CCM position was a reassurance.
In effect, the CCM central committee, in releasing the 'directive' to the constitutional commission – in political terms, to those who belong to the party in the commission, as to what is the right attitude to take – has technically put in a response similar to Mwalimu, that 'I will not stand by while my country goes to the dogs.'
Those with little knowledge of the Queen's language churned out articles saying 'he says the opposition are dogs.'
'Going to the dogs' means being fought over, with an uncertain outcome since dogs only know how to snarl and fight over whatever it is, not to share it out fairly. In that case the ruling party has shown that it isn't unconcerned about the manner in which the debate or the presentation of views on the design or sentiment of a new constitution goes, and as a ruling party, it has the duty or responsibility to steer the course to a happy ending; that is, where the fundamental premises of peace are upheld as sacrosanct. That obviously isn't the view of the opposition, whose declared aim is to 'remove CCM from power.'
What the CCM position is opening up in legal terms is how to draw the line between the sentiments of CCM as a ruling party and the position of the government, which essentially is coordinated by the central committee, who constitute the political base of governing as such.
What are called decisions of the president must always be coordinated with the central policy-making organ, though in this case it is advisory in character; but, as a matter of fact, it is the top body as no policies are made in NEC, rather, it is given to edify the 'mass attitude,' the public posture it thus sets out. CC makes up policy ingredients.
The question which rattles radicals and their friends in the opposition is whether this new constitution writing can retain the vigour they expect to put into it if the ruling party abandons what has started being seen as neutrality, so that people are 'free' to air their views on the sort of constitution they want.
There is definitely a string or two that have been put on the constitution-making process in the sense that CCM is awakening to the fact that some of the most distrustful intentions are on the prowl to bend and twist the country's institutions as they deem fit for the short-term benefit of winning political power.
Within the context of a properly conservative bent, where not only the continuation and assurance of the union and issues of separation of powers and human rights are concerned but also political stability, one could even say the central committee gave away too much.
There are, for instance, few tangible or too clear benefits of letting aggrieved parties go to court over presidential election results, despite the very studied cynicism which has since been adopted by CCM critics and ill-wishers, that it has started to see itself as the likely loser in the 2015 polls, so it wishes to prepare the way to being able to stop the first results being announced, etc.
In actual fact, CCM was seeking areas of compromise so that there is at least some 'meat' to the 'constitution rewriting' scheme; if the issue is power, courts wouldn't be the way.
A similar position of compromise over what most stability-minded people would consider to be a vital and necessary constitutional safeguard was 'permission' to discuss the powers of the president.
To a large extent, the radicals see this ability or need as the raison d'etre of the whole exercise, that presidential powers be limited so that there is democracy, and are totally unaware that this only leads to instability, as a weak presidency leaves a vacuum where all sorts of tsetse flies are bound to flourish.
It also beats analytical requirements of good governance, as in what way can the president ensure each is doing his duty if he can't hire and fire unless someone else – some parliamentary committee – agrees?
There is no proper logic in the new CCM position on the matter, except merely to create room for debate on the problem, to avoid closing this issue as well – since even those who sit on the commission have clear sentiments about the matter, and the central committee is helping them as well to see how far they could be neutral, and how far they must remain principled.
So they are being directed that there must be some areas we should at least be prepared to discuss, obviously in order to reinforce the current way of doing things, as a matter of principle. This can be done without having to shut out possible alternatives, or other points of view, either by government fiat or by studied resistance on the part of the commissioners.
What is uncertain however is what portion of the commissioners will feel bound to take up the position of the CCM central committee as sacrosanct, and what portion will not feel inclined towards that view.
Examining the issue from a distance – as at times only a holistic outlook is possible, in the absence of a proper survey or direct interview on the matter – it appears that the majority will feel it that way, but it isn't the attitude of the majority which will determine its conduct and, still less, the outcome of its work – or
how writing a new constitution shall be conducted. It is sufficient that three or four disagree about, say, the union, and another three or four as to human rights if it excludes Kadhi courts, for it to explode.
Were it thus a matter of 'political engineering,' as US political science used to say in the 1970s, it could be said that CCM has tried its level best to open the door for discussion with wide ranging options or designs as to how a new constitution can be crafted, putting ethical safeguards on its desired outcome.
Yet the very fact that such a process has been engaged to draft a new constitution, it is ab initio evident that a key defeat has already been delivered upon the ruling party, that of the very need to engage in that process – since it has animated desires, cultivated positions and all sorts of campaigns, overtly as well as covertly, on what should be its outcome.
A timely word of caution is useful: There is no guarantee of success that desisting from questioning the union will stick, or affirming existing separation of powers.