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Badilisha Lugha KISWAHILI

Common wish is to see constitutional review team deliver

14th April 2012

While the ink is not yet dry on the gazette notice by President Jakaya Kikwete as to who will feature in the Constitutional Review Commission, some gnashing of teeth could be heard already.

Part of the issue is whether the team that was picked has its heart and mind in a new constitution, or it is attached to the current order of things, and which thread is likely to dominate as it embarks on its wake.

Only in view of the presumed task of the team, that is, facilitate intensely expressed need to write a new constitution, that its membership and core leadership is being quizzed, not the preliminary credentials of nominees.

In that case there is a first problem that is posed, whether the team picked is apt for the task, in case this is described as ‘writing a new constitution,’ and not just collecting opinions and then starting to decide what to do with those opinions.

Enthusiasts of the new constitution demand are clearly worried as to whether this team is one disposed to write a new constitution. The key ill is its core leadership in the persons of ex-Attorney General Joseph Warioba, also former premier, and ex-Chief Justice Augustino Ramadhani.

The question really comes down to demanding if and in what manner the sentiments of the two key officials of the commission will affect the handling of the task set out, in how they handle views.

Take Judge Warioba for instance, that as Attorney General he was key to the drafting of the Constitution of 1977 and it is unlikely that his heart is located in the quest for a new constitution, which also has been mentioned with regard to ex-CJ Ramadhani. Critics say he ‘unsatisfactorily’ handled the issue of private candidacy, in other words, reached a verdict they did not wish for, and not that the precepts of law on the issue were ‘unsatisfactorily’ handled.

Activists wish that constitutional preambles override positive law on a certain subject, in so far as ‘rights’ arising from that preamble seem to be infringed upon by that specific legislation, which they equate with primacy of the constitution, grasped as the preamble….

What CJ Ramadhani for instance said in his judgment of the private candidacy appeal was that decisions regarding who is fit to be voted upon in parliamentary and presidential elections were all the ‘private property,’ or sole preserve of elected representatives of the people.

he CJ put out an interpretation of the law, whereas being asked to make an actual decision on the matter was tantamount to legislating, while courts are supposed to interpret legislation, thus addressed a ‘return to sender’ on that question, as it belongs to Parliament to make such change. Activists wish to override Parliament when it suits them, with little inclination to comprehend that this opens the door to alternative sorts of interventions, too.

Still there were positive expectations even among the radical activist group, that the commission is not charged with writing the new constitution or deciding the issue of whether or not there is need for such a document.

The point is to collect views from the public, and put them to some due diligence exercise of who said what, where and in what context, in which case evaluate the mood and actual sentiment on the constitution, with a view to making such expressions the basis of the subsequent level of its task, to draw up concrete write ups of what would be the format of a new constitution, more or less by simply incorporating the diverse ideas so expressed.

The core leadership of the team is the one charged with leading the discussion in collecting views, as well as in ensuring order and sobriety in evaluating views.

Those trying to be a bit optimistic, or taking a positive view of the situation, focus not on the decided opinions and orientations of the commission in its entirety or its core officials, but on the modality of what it is setting out to do.

If the function of the team is to collect views, this school of thought is not looking at the composition of commissioners and what they themselves think of a new constitution, but rather demanding diligence and objectivity in recording or registering what people will have heard.

In that case the few or perhaps several reform minded commissioners have a task much less of influencing opinions or sentiments in the commission about the new constitution but the correct recording of views.

It can largely be said that this is the formal expectation of the powers that be, in the sense of the Head of State in particular, because, outside that function, the commission is incapable of agreeing about nothing specifically.

The general dissenting view that the commission is led by people attached to the status quo and thus can’t bring about real change is a confusion of its tasks, that of writing a constitution on the basis of their sentiments and inclinations, whereas their task is quite the contrary.

They are being brought together to listen, record and deliberate upon what people have said they want in a new basic law of the country – hence positive recording of opinion and its honest evaluation is crucial.

While this sort of emphasis of objectivity is vital to grasp the tasks of the commission, it is a different matter to determine if indeed this is what is expected by all and sundry – from appointing authorities to political parties.

For instance when the radical activist line laments that the commission is largely composed of non-reformists and more aficionados of the status quo, is it because such people cannot diligently and honesty take note of all shades of opinion expressed or likely to be expressed in taking popular views on the constitution?

Hardly would that be the reason, but more so that their own opinions will largely take a key role for instance to determine which viewpoint is right concerning this or that issue.

On the basis of the composition of the commission, the specificity of its diversity and significance of those present, it is incumbent upon political parties to realize that much as they have greater say in directing reactions, for instance in calling for demonstrations, they don't have primacy in the commission.

Few of the core leaders are markedly pro-CCM, if one thinks of Joseph Warioba or Augustino Ramadhani and tries to put on them a CCM garb, that such a person will realize that it is ill fitting, that they feel better in the gowns and wig of a judge and not the green and yellow shirts. In that case the 'two musketeers,' Prof. Baregu and Dr Mvungi, also need to join in academic garb, shedding their party skins at the door.

That is what will prove difficult because the other parameters of society that are given prominence scarcely express themselves at a political level except through parties.

That is why, when the state seems unresponsive to their needs, various communities or sections of society have crowded around a political party, the way  bishops of various churches showed marked dissent from CCM and its presidential candidate in polls 2010.

That is why certain sections of the community or rather notables in those sections will find themselves between a rock and a hard place.

Many among the prelates for instance find themselves aligned politically to Chadema, in which case their spokesman in the commission would be Prof. Baregu, but in actual religious life the St. Augustine and ex-UDSM don is hardly one of them.

His province is academics and politics, with some doubts as to his personal convictions on matters of religion, in which case their real representative ought to be Prof. Palamagamba John Kabudi, principal of the University of Dar es Salaam Law School and director of higher education programs at the Christian Council of Tanzania (CCT). 

The difference however is that Prof. Kabudi can take up sentiments of the churches in person and represent a synthetic opinion arising from them, but without furnishing an additional platform of a political party in case his sentiments aren't adopted, which the president thus wishes to dissuade.

Put differently, the commission diversity and individuality can work properly if the members take up their community belonging as a source of ideals on what the constitution should contain,  but renounce all idea of championing those ideals on platforms of political parties.

At the same time, political parties need to see their own presence as an auxiliary community, some kind of auxiliary denomination that focuses on policies and elections instead of destiny and morality. Each of them has some credible representative who is acceptable to them in some way, and some with cross-cutting loyalty, like Dr Salim for CCM and largely for CUF.

That is why it is altogether arguable if the nominated commission is capable really of coming up with a new constitution, on the basis of the fact that its composition is largely of opponents, critics or sceptics of the whole plan for a new constitution – not its staunch advocates as some opinion makers would have liked it to be. In that manner, it follows that the project of writing a new constitution has largely been entrusted to people who aren't quite as tired of the current constitution as a vocal margin of the country's politics would have everybody believe. 

While the commission isn't charged with determining whether we need a new constitution or not, its task is just as discouraging for enthusiasts of a new constitution, that of interpreting whether this or that opinion raised in this or that
quarter is sensible.

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