The cry for a need of a new Constitution in the United Republic of Tanzania has picked up the steam. Important and respected personalities in the legal field and beyond have added voice to the demand for a new Constitution.
That is, adding to the promises made by some of the political parties in the country that if they were to come to power, they would initiate the move towards a new Constitution in the country. However, let it be added that the demand for a new Constitution is not a new one.
The demands are made from time to time whenever the opportunity occurs but the powers that be have always found ways of justifying the refusal to have a new Constitution in the country. Unfortunately, these demands will continue in one way or the other if they are not addressed squarely and given satisfactory answers.
To refresh our memories, in the past the demand for a new Constitution has come up sharply on two occasions. First, during the Nyalali Commission on One Party or Multiparty of 1991 which recommended for the introduction of a multiparty political system in the country in 1992 vide the 8th Constitutional Amendment which was fortified by the Political Parties Act, 1992 (Act No. 5 of 1992) at implementation level.
Second, in 1998 the then President of the United Republic of Tanzania Mr. Benjamin William Mkapa formed a Committee on White Paper under Hon. Dr. Justice (retired) Robert Habesh Kisanga. The problem with the White Paper was that it posed questions and provided answers on issues which the government of the day thought were of constitutional importance. The people were asked only to comment if they had additional comments on the answers given by the government.
In the process of the Committee’s work the question of the need of having a new Constitution kept on emerging in the debate. When the Committee submitted it’s well-considered report it was dressed down by the President in a speech to Dar es Salaam elders at Diamond Jubilee Hall that it had gone beyond its mandate as it was not a Commission but a mere Committee. Thus the fundamental issues raised by the citizens to the Committee were quietly swept under the carpet.
As indicated earlier, this time around the demand for a new Constitution has emerged because some of the political parties had taken this issue and placed it on the top of their election manifestos for the 2010 General Elections. They had promised the electorate that if elected, they would provide the country with a new Constitution. It would seem that as this issue continues to be postponed, it will not go away and will keep on emerging whenever the occasion occurs.
The Constitution as a Heart of the Nation
The demands for a new Constitution are not accidental. It is because the Constitution is a very important legal, political and social instrument in any country. It is what unites people together irrespective of their social statues, religious beliefs, political affiliations etc. For them, the Constitution is colour-blind and it does not discriminate any of them and thus they can seek refuge in this noble instrument. The Constitution is the heart of the country – the centre which keeps everything going.
This point was captured very well by H.E. Benjamin William Mkapa, the retired President of the United Republic of Tanzania in a speech to the Annual General Meeting of the East Africa Law Society (EALS) held in Bujumbura, Burundi between 19th and 20th November, 2010. Retired President Mkapa compared the Constitution with the heart in a human body and thus underlined its importance. In the case of Tanzania, he insisted on the need to have a new and a better Constitution. In his own words:
The Constitution is the Heart of the Nation. The Heart of the human body enables the organs of the body to function, and the organs work to it. And so it should be with the body politic. Therefore, the way forward starts with an overhaul of the Constitution and its organs of state. We cling to the Independence constitutions at our deferred peril.
It is gratifying to note what leaders after leaving office have more time to reflect on wider fundamental issues of the nation. This is quite a change of heart on the part of retired President having consistently resisted the call for new Constitution for the ten years he was in the office between 1995 and 2005.
This is also a lesson to those in power not ignore the demands by the citizens or to wait until until they are out of office and support what they were in a position to do and lead to fundamental change in the society. It is not enough to wait for demands to come from the civil society and the opposition for the government to act. The government should be pro-active in tackling issues which bother the citizens and which are thought to be central in the life of the nation.
The Legality and Legitimacy of the Constitution
The question of the legality and legitimacy of the current Constitution of the United Republic of Tanzania of 1977. It is not easy to question the legality of the existing Constitution. However, its legitimacy is open to debate. Here the question is whether, this legal instrument which was adopted during the heydays of the one supreme party really has its basis in the people of Tanzania. This is indicated by the fact that: The very first constitution – the Independence Constitution of 1961 was prepared by the departing British.
This is not limited to the current constitution only but rather all constitutions which have guided the country since independence. In all these instruments the majority of the people of Tanzania had little or no say at all. This is because they were not fully consulted in their formulation.
The Republican Constitution of 1962 was prepared hurriedly to replace the Queen of England as the Head of State of the country and did not fundamentally depart from the main tenets of the Independence of Constitution, before it saved for the removal of the Queen as the Head of the State in the country as the case is today in Canada; Australia; New Zealand etc.
The Interim Constitution of 1965 was prepared by the government as a stop-gap measure to accommodate the Union between Tanganyika and Zanzibar entered in to the year before. The Permanent Constitution of the United Republic of Tanzania of 1977 was prepared in three months by the same team that had prepared the Constitution of Chama Cha Mapinduzi (CCM) following the merger between Tanganyika African National Union (TANU) and Afro Shiraz Party (ASP).
Therefore, it is obvious that at no time were people democratically consulted on what type of constitution they would like to have. Therefore, the common man and woman in Tanzania have never been meaningfully consulted on the type of constitution he or she would like to have.
Therefore, in a way, the current demands have come at the right time as they provide the government of the day the opportunity to make history by leading the people into the new constitution. The legitimacy of the document which will come out of this exercise will depend on the level and the genuineness of the involment of the people.
It is important not to repeat what happened in 1998 during the White Paper process where, as indicated before, the government set its own questions, answered them and then wanted people to make any additions they thought were necessary.
That is not a genuine involvement of the people in the political process but a deception. It is the proper involvement of the people in the preparation of their constitution which will make them own it as theirs and thus grant it legitimacy. That type of constitution will earn automatic respect if not reverence from its makers. If the government of the day were to intiate a process of this nature this will be a patriotic act which will gain support from all sections of the society and history will be on its side.
A New Constitution or Constitutions
The majority of those who are demanding for a new Constitution have in mind and focus the Constitution of the United Republic of Tanzania of 1977. They are oblivious of the fact Tanzania is a United Republic and has two existing constitutions. The other is the Constitution of Zanzibar of 1984.
These are two autonomous constitutions – with equal legal value and operating in two different spheres within one State. It is therefore important to ensure that these constitutions are in harmony and do not conflict. During the one party political system it was possible to ensure that harmony as it is this supreme party which used to issue policies which were translated into law. Now, that is no longer the situation. There is an apparent legal tug-of-war between the two parts of the Union. The Union Government is pulling East and the Revolutionary Government of Zanzibar is pulling West! Each is going its own way.
For instance, recently, the Constitution of Zanzibar of 1984 was amended for the 10th time since its adoption. The 10th Constitutional Amendment introduced the Government of Naitonal Unity in Zanzibar (GNU). In the process, the office of the Chief Minister was abolished. Instead two Vice Presidents were provided for – the 1st and 2nd Vice President coming from the two ruling parties under the new political dispensation.
However, these changes were not at the same time reflected in the Union Constitution of 1977. Therefore, up to now, the Union constitution in Chapter Four (Articles 102 to 107) still provides for a Revolutionary Government of Zanzibar with Chief Minister etc. Thus, the two constitutions are talking of two different things and thus confusing the people.
It means that whether he likes it or not, the Attorney General of the United Republic of Tanzania Judge Frederick Werema has no alternative but to introduce 15th Amendment to the Union Constitution to accommodate what has already been decided and legislated in Zanzibar.
If that does not happen, then Tanzania will be a legal laughing stock due to the anomally in the two constitutions in the country. This is because the Union Constitution will not only be misleading but also proving some incorrect information – something which the most important document in a country should not be doing. This will not be viewed well given the number of learned, experienced and seasoned lawyers present in the Parliament.
At the same time, the 10th Constitutional Amendment in Zanzibar have gone further to restrict and limit the powers of the Court of Appeal of Tanzania to operate in Zanzibar. The Court of Appeal is a Union Matter under Schedule One to the Union Constitution of 1977. Now, this Amendment bars the Court of Appeal from dealing with anything based on Chapter Three of the Constituion of Zanzibar (See Sections 98 and 99 of the Zanzibar Constitution). All human rights related cases now end at the High Court of Zanzibar. The question is whether it is correct for this constitution to restrict what it did not create in the first place.
Also, the 10th Constitutional Amendment in Zanzibar has ended up confusing political partis. A good case is that of the Civic United Front (CUF). One the one hand, CUF is a co-ruling party in Zanzibar under the Government of National Unity.
However, on the other hand, CUF would like to be part of the opposition in the Union Parliament in Dodoma. It is not easy for the other political parties to understand how a political party can be part of the rulers and at the same time be an opposition party as well. These are not simple matters to be ignored. They need concrete, well considered and well-thought answers which will be understood by the population.
Thus there is no doubt that to create legal sanity in the current constitutional set-up in the country one needs to address the two constitutions simultaneously. You cannot deal with one and ignore the other within the United Republic of Tanzania.
New Constitutions or Further Amendments
The two constitutions have been amended too many times. The Union Constitution has been amended 14 times between 1977 and now. As for the Zanzibar Constitution it is 10 amendments between 1984 and 2010. These are many amendments and do not reflect well on a country. They are patches (Viraka) which do not only disfigure the Constitution but also indicates lack of strategical direction.
For instance, when we introduced the concept of the running mate in general presidential elections – it was in violation of the Articles of the Union of 1964 which clearly provided for the sharing of power and the connection between the two parts of the Union. It is not clear now what type of political system we are following – the American presidential system or the British parlimeantary system – the West Minsters. Therefore, it is difficult to analyse the constitution itself.
The two constitutions do not only have many patches – but also many blanks. That is empty provisions. Look at Articles 10; 80 and 82 in the Union Constitution and Sections 98; 102A and 103 of the Constitution of Zanzibar. They are all empty. Also, there are many dormant provisions in the Union Constitution, that is provisions which are never invoked or will never under the current circumstances.
For instance, provisions establishing the Special Constitutional Court of the United Republic of Tanzania in which it is only the Union Government and the Revolutionary Government of Zanzibar can be parties (See Articles 125 to 128) of the Union Constitution. This court was never established nor tested.
It is not proper to have constitutions which are full of patches and dormant provisions. Thus, there is a need of having proper constitutions which are modern and moving with time. It should be constitutions, whose preparation has involved people fully so that they can feel that they own the process. It should be constitutions which are not pulling each other around as is the current situation in Tanzania.
Resistance to Have a New Constitution
It is not easy to understand why there is so much resistance to the preparation of a new Constitution for the country. It is obvious that even those who say that the current Constitution is satisfactory and only need a few amendments here and there know very well deep in their conscience that this is not true.
If they have ever bothered to read the Constitution – and many have not notwithstanding the fact that they have been sworn into their particular offices using this solemn document, they would have come across the many deficiencies, contradictions and lack of direction.
There are views from some quarters that conceding to the formulation of new Constitution will actually mean that the government in the office now will be deemed to be in power illegally and thus the need for a transitional government. This is false argument which has no basis in the law.
Practice in the region and in the continent indicates that countries have prepared new Constitutions and what has not directly and immediately affected the status quo. Uganda had a new Constitution in 1995; Rwanda in 2003; and Kenya in 2010 and yet the political situation has not been disrupted by the new Constituions inaugurated in these countries.
It will be the same in Tanzania and hence the fear expressed in groundless. In other words, a new Constitution is not a danger but a blessing. What is required is civic education on both the people and the rulers so that they can understand the essence of the Constitution and the need to have a good and functioning Constitution.
The Way to the New Constitution
There is a thinking, misguided though, that a new Constitution is important only in transitional situations in countries which have emerged from a war or a civil disorder. It is our argument a constitutional order that is built out of a war or a civil disorder cannot be durable because of the tendency of trying to fix things quickly and without much reflection.
Thus the tendency is normally narrow and not addressing issues in their totality. It should be noted that a constitution which has been prepared during peaceful times and with people’s total involvement in providing guidance on the the future of the country tends to be be nice and durable.
There are those who are citing expenses involved in the preparation of the new Constitution. They argue that a new Constitution is too expensive and the country cannot afford. That is missing the point. Here, there is a confusion between a Constitution as a document and a Constitution as ideals that guide a nation and how to get it.
It is worth noting that there is no single way of preparing new Constitution for a country. Therefore, it is not correct to argue that preparing a new constitution requires a lot of time and money. That is a misguided and narrow approach to constitutional making. What is fundamental is not the time or money.
Central is, any constitutional making process is to ensure that the whole community is involved in effectively in the process and that a new constitution is not forced through their throats. People should be enabled to clearly say what type of society they would like to live in and how they would like to be governed. So, once the people have indicated the way in very clear terms, it is easy for the technocrats to go and craft these ideas in a legal and understandable language.
Let us remember that the Constitution is not a book. It is the ideas behind what is written and where they come from. At the same time, there is no myth about how a Constitution is written. It is not necessary and it does not add any value for a Constitution to be prepared in a complicated and bombastic language. It should not be in English or Latin as many lawyers love.
A good Constitution should be prepared in simple language which a citizen with an average education to read and write understands without the need of consulting some jurisprudence experts for interpretation. After all, the Constitution is meant for this average person and not necessarily for learned lawyers. It will be a successful constitutional making exercise if many people understands the contents of the constitution and not a small group of the educated.
A good example is Uganda where the process leading to the 1995 Constitution involved all the citizens. That is peasants, fishermen, workers, traders, professionals, women, youth, elders, faith based organisations, traditional rulers, etc. All these groups were enabled by the Constitutional Commission under Chief Justice Benjamin Odoki to freely air their views on what type of constitution they wanted Uganda to have.
Therefore, when eventually the Constitution was prepared, the average citizen knew what was contained therein without necessarily knowing which Article, paragraph and so on. Thus this citizen identified fully with the new constitution knowing that his or her ideas have not been ignored and formed part of the whole document. It is therefore very important to genuinely involve the citizens in the constitutional making process. This is because this is their constitution.
Therefore, the constitution of the country could be prepared through a Commission of experts which ensures that the people of the country have been fully involved in its preparation.
It can also involve experts from outside who are lively to provide valuable input as it happened in Kenya where local and foreign experts produced an admirable document.
What is fundamental is to ensure that the people participate in the process fully so that they can claim ownership to their Constitution. Nobody should claim to speak for and on behalf of the people for allegedly knowing what the people want.
The whole process need not be very expensive – although certain expenses to make the process a reality cannot be avoided. Every good thing has its price and the same applies for a good Constitution.
At the end of the day – democracy should not be cheap. It is expensive because there is investment to be made to ensure that peace and stability is guaranteed. A quick-fix form of constitution made hurriedly to avoid expenses can only lead to endless and complaints and total disaster.
Prof. Chris Maina Peter, is Head of School of Law, University of Dar es Salaam; and Chairperson, Zanzibar Legal Services Centre (ZLSC), Zanzibar.