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The Tanzania Draft Constitution of 2013: Panacea or Pandora Box?

16th June 2013
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 Why MPs will never allow the Warioba Draft to pass

This week, The Guardian on Sunday is featuring a commentary from Dr Khoti Kamanga, an expert in public international law at the School of Law of the University of Dar es Salaam, and senior staffer in its Centre for Migration Studies. His remarks are premised on an earlier reaction by his School of Law senior colleague, Prof. Chris Maina Peter which we published last week.

This feature article is to a great extent inspired by an earlier feature by Prof Chris Maina Peter, titled ‘The Draft Constitution of 2013: Silent Revolution’, but also following my personal engagement with the ongoing constitutional review process in various capacities. While acknowledging the major milestone in constitution making, the Draft Constitution represents, I do so with circumspect, and ask myself:

What is particularly ‘revolutionary’? Does the Draft Constitution, presented to the nation on June 3, 2013, by retired Judge Joseph Sinde Warioba, truly contain the ‘universal remedy’ to all our existing constitutional woes? Or, to the contrary, has it only succeeded to open the ‘box of worms’, whose existence we chose to ignore? What aspects of this bulky Draft could have been packaged differently?

 

What is genuinely ‘revolutionary’?

The column by Prof Peter has an almost exhaustive catalogue of those provisions which clearly set apart the ‘Warioba Draft’, from the existing Constitution, adopted in 1977. Nearly 11 substantive matters are mentioned. They range from fixed tenure for members of Parliament (MPs), and the legal prospect of an MP’s recall, to the issue of exclusion of MPs from the Cabinet. Or, to mention a few more: abandoning ‘Special Seats’, the all out war against abuse of office and embezzlement, and the disengagement of the office of the Speaker, from the requirement of Political Party affiliation. Nowhere in the 152 Articles of the existing Constitution, that is, the 1977 Constitution of the United Republic, does one find provisions of comparable boldness and novelty.

Also, to its credit, the ‘Draft’ aspires to bring to an ignominious end, the 20 year old (advocacy, court, and political) battle, to have ‘independent candidates’ recognized, as fair and legitimate aspirants for political office. Kudos, deservedly.

In my modest view, if the Draft Constitution is a watershed development, it is not for its contents as such, and whatever their worth, but for being part of a process which has totally and hopefully, permanently, ‘demystified’ constitution making. At no time in the nation’s history have wananchi come even remotely close to taking a meaningful role in the constitution making process. Secondly, there is no escaping from the fact, that for many years, and despite persistent public demand, constitutional review was hardly a priority for the ruling class.

As we say in Kiswahili, it is has emerged, that “Kumbe Katiba inazungumzika!” Experience has demonstrated that Tanzanians are capable of putting together and running a fairly competent, respectable national body to spearhead the constitution-making process. Equally, that Tanzanians cannot be said to be incapable of discussing sensitive, complex constitutional issues in an atmosphere of civility and calm.

Given our history of constitution making of the last four decades, this particular development would appear to accord with the description of being ‘revolutionary’ and indeed ‘silent’. But what else, in the body of the Draft, may confidently be presented as being equally ‘revolutionary’?

The dictionary meaning of the word ‘revolution’ places emphasis on ‘fundamental’ and ‘far reaching’ nature of a particular action or change. And, if I may add, its irreversibility, or at least prolonged duration. In classical Marxism, the thresholds for a ‘revolution’ are even higher, and that is the source of the trepidation at the liberal use of the term! But more of this later.

 

Novel, bold and welcome; but ‘revolutionary’?

To be fair, each of the 11 areas of the Draft, identified by Prof Peter, simply have no parallels in the existing Constitution, that is the 1977 Constitution of the United Republic. Bold, novel, forward looking, no doubt. But the Draft is but, part of an ongoing process. Neither is it a final draft. Thirdly, there isn’t a soul on the land, save for those in the ‘kitchen cabinet’ capable of saying with certainty, how much, and what precisely in the present Draft, will survive and find its way into the final draft, that will emerge following the envisaged referendum.

So, it can only be with circumspect that the ‘achievements’ of the draft are weighed. And indeed, the column by Prof Peter appreciates this seeming irony of the ‘Warioba Draft.’ Having given a survey of 11 areas in which the Draft comes out with flying colours, the column aptly addresses “Challenges to the Draft Constitution.” And the opening lines are as instructive, as they are a poignant reminder of the fundamentally unsettling threats confronting the Draft Constitution.

It reads: “It is one thing to have a good Draft Constitution and something else to take through the process of acceptability [sic].” Clearly, there is a clear recognition that the Draft has its detractors, and capable of unleashing havoc. More precisely, three ‘groups’ are identified as sources of “serious challenges”, and justifiably so. Opponents of the proposed three governments structure are not only openly vocal.

They are to be found, on both sides of the Zanzibar Channel. Another potential ‘hot spot’ of opposition, are legislators. One has to bear in mind that the Draft Constitution promises to bring many novel and seismic changes to the personal economic, social, and political fortunes, of a member of Parliament (MP).

Serious challenges

The Warioba Draft sets a cap as regards the terms an MP may sit in the august house. It denies MPs the opportunity to sit on the cabinet as a minister, but also subjects MPs to the system of ‘recall’ by their constituency, for a host of reasons, ranging from incompetence to unethical conduct. And yet, MPs (along with their Zanzibari counterparts in the House of Representatives), are a pivotal force in getting the Draft Constitution approved or rejected by the Constituent Assembly (CA).

The two blocs of legislators will constitute well over 72% (or around two thirds) of the entire membership of the Constituent Assembly (CA). It would be naïve, and a constitutional curiosity, to expect legislators to timidly approve a version of the Constitution, which essentially, renegotiates their fortunes in a manner Honorable Members are not accustomed to.

The article by Prof Peter points to, and rightly so, a third source of flak and outright threat to the Draft Constitution. Constitutional Forums (Mabaraza ya Katiba) were designed as a grassroot tool to facilitate participation in the constitution making process. Many have drawn attention not only to the outright flawed nature by which members of the Baraza have been selected, but question the individual integrity and competence of some, if not most of them.

Like the Constituent Assembly discussed a while ago, these Baraza are critical in safeguarding the achievements of the Draft Constitution. Baraza which are partisan, incompetent and a ‘spoil sport’ (“wakimwaga mboga, tutamwaga ugali!”) are surely a real, and formidable detractor.

Further threats

There are several further real threats to the Draft Constitution, but which have not surfaced in the column authored by Prof Peter. Let us stick to at least three. If media reports of the last two weeks are anything to go by, clearly discordant messages are coming out from higher echelons of the ruling Party in respect of the ‘Three Governments’ system. The second issue relates to the envisaged ‘Referendum’.

And thirdly, are the political, social but also constitutional ramifications of the ‘Three-Governments’ architecture, proposed by the Draft Constitution, which rather than being a panacea, might well be a Pandora’s box, a ‘can of worms’.

Leaving the task of administration of the referendum in the hands of National Electoral Commissions, bodies widely perceived as partisan and not apt for such a task, is highly contentious. The ambiguity in the Constitutional Review Commission Act as to whether the legal benchmark in determining the outcome of the referendum would be: “all votes cast”, or, “all valid ballots”, rushes memories of the recent Kenya Supreme Court case, in which Uhuru Kenyatta’s election victory was challenged. And so too, is the prospect of abandoning the constitutional review process, and allowing the continued application of the 1977 Constitution, a possibility explicitly provided for under the terms of Section 36 (5) of the Act.

Finally, the Three Governments architecture proposed by the Draft Constitution envisages the existence of a Federal Government, and two constituent States (Tanganyika and Zanzibar). Being modern day sovereigns, and Republics for that matter, it is inevitable that among others, each Constituent State would adopt a Constitution. In fact, Zanzibar already has one (while Tanganyika doesn’t). But whether the existing Zanzibar Constitution will form the basis of the new Constitution of Zanzibar, or be set aside, in preference for beginning with a ‘clean slate’, is anyone’s guess.

It must therefore be a foregone conclusion that in negotiations for the respective two new Constitutions, at least two matters would assume pre-eminent attention. One is the nature and form of the ‘Union’ (including the delineation of areas of exclusive jurisdiction), and the other is the Warioba Draft Constitution itself (in the version which will survive the Referendum!) The gift to make an intelligent guess, about the final outcome of those negotiations and debate, is not part my greatest strengths. What seems pretty clear though is that the Warioba Draft Constitution will continue to come under merciless scrutiny from its detractors and sympathizers alike.

Could some of the provisions of the Draft Constitution been packaged differently? The claim that the Draft Constitution has been written in a language and manner accessible to most Tanzanians may pass the test. However, running for a total of 240 Articles (excluding annextures), the ‘Warioba Draft’ is without question in the class of ‘bulky’ Constitutions. And, voluminous legal or political texts have never been known to be ‘reader friendly.’

The motivation for (and pleasure from), reading a two page feature article, and plowing through Marx’s Das Kapital, is as distinct as night and day. In turn, ‘inaccessibility’ of the Draft Constitution (and the final version following it), to the general readership, is likely to affect the level of public awareness and along with it, ‘ownership’, and therefore, ultimately, level of compliance, political legitimacy notwithstanding.

In Kiswahili, the word coming closest to describing a bulky Constitution is probably the term ‘lumbesa’. And, I must admit, that ours, is not the only ‘lumbesa’ in the sub-region. Neither are we saying that ‘lumbesa’ in itself condemns a Constitution. However, it is simply a fact that the more bulky a document is, the more complicated becomes the task of maintaining clarity, and internal cohesion of the narration.

And finally, shorter, pocket-size Constitutions are a practical reality, not utopia. The Constitution of the United States is one such illustration. In less than a dozen provisions, it regulates fairly effectively, a host of fundamental issues, including relations between the Federal Government and its over four dozen constituent States, for the last three centuries. How the Americans achieved this monumental constitutional feat is a discussion better left for another day!

Was there an alternative drafting strategy?

Why was a bulky draft unavoidable in our case? My speculation points to a desire to have the Constitution pronounce itself adequately on all those matters deemed important and sensitive. For avoidance of doubt, as the saying, goes. A second factor is probably the sheer size of the Commission and the challenges this poses in terms of organizing working sessions.

The Warioba Commission comprised 32 commissioners, of all imaginable backgrounds, persuasions and competences. Thirdly, ordinarily and most likely, rather than working in plenary all the time, commissioners worked in smaller groups. Each cluster sitting independently of the others, preparing a draft on its respective area of focus, subsequently presenting a draft for discussion and adoption at plenary.

In other words, the various parts of what became the Draft were put together by several working groups working independently of one another. The totality of the three factors (and if true) create the challenge of assembling the ‘disparate parts’ in such a way as to that the product leaving the ‘assembly line’ is a sufficiently smooth, streamlined product.

Avoiding overlaps, ensuring coherency and synergies, between the 240 Articles comprising the Draft must have been a daunting challenge.

Not surprisingly one encounters avoidable repetitions. The role and place of ‘Kiswahili’ (National Language) resurfaces at least in two separate provisions.

That too is similarly the case in respect of ‘national unity’ which is the subject matter of Articles 5, 7 and 11. But the more grave source of the ‘lumbesa,’ or bloated draft Constitution, is the Bill of Rights (Articles 22 – 47). Any human rights activist will take delight, and justifiably so, at the ornate list of rights found in the Draft.

Bill of Rights

However, anyone who has bothered to follow closely what are the key ingredients to an accessible and effective national system for the promotion and protection of human rights, will have long discovered that an ornate Bill of Rights is important, but hardly the only requirement, and for that matter, neither the most decisive.

A more ‘economic’, forward looking drafting approach would have been to avoid stuffing the Constitution with provisions, already the subject matter of treaties that Tanzania has already solemnly pledged to be bound to.

What was the purpose of signing and ratifying the 1979 Convention on the Elimination of All Forms of Discrimination Against Women (so called, CEDAW), if not to make sure that Tanzanian women and girls do enjoy the rights the Convention proclaims? Tanzania has likewise signed and ratified the 1989 UN Convention on the Rights of the Child (and proceeded to domesticate it in 2009).

To these global human rights instruments we should also include the 1966 Covenants. At another level are sub-regional instruments, most notably, the African Union ‘Maputo Protocol’ in respect of human rights of women, and the 1990 African Charter on the Rights and Welfare of Children.

It would appear that rather than restating the obvious, shouldn’t our Draft Constitution confine itself to making a cross reference to these legal instruments and arising obligations? But in a manner and form more legally precise and emphatic, than draft Article 11 (3) (b) (i), the only provision which attempts to capture the intersect between the laws of Tanzania, the nation’s treaty obligations. In so doing, not only would the Draft Constitution have assumed a welcome lean (as opposed to a bloated, ‘lumbesa’ girth) look. No less important, it would have reassured, reaffirmed our commitment to unfailingly deliver on our legal obligations to the ‘family of nations.’

Finally, and related to that, a situation would have been created for national law enforcers, to begin to draw more often and freely, on the existing vast body of progressive international jurisprudence on human rights, than is presently the case. And, especially that jurisprudence pertaining to economic, social and cultural rights, an area of particular vulnerability in meeting our UN Millennium Development Goals (MDGs), especially in the areas of mother and child health, poverty, and education.

In conclusion

We may now return where we began, which is, to the claim that the Draft Constitution presented to the nation by Mzee Joseph Sinde Warioba on June 3, 2013, represents a ‘silent revolution.’ To assert, as some did, especially in the initial stages, that the entire constitutional review process was a sham, appears rather harsh and sweeping.

But to pass a verdict of ‘revolution’ also seems overly optimistic, because along with quiet laudable achievements, the Draft Constitution is littered with numerous and gigantic hurdles.

And, this is on account of no other reason, than the fact that the Draft Constitution is both a panacea and a Pandora’s box.

The Draft Constitution no longer beats about the bush in respect of ‘Ujamaa na Kujitegemea’. But is that to say that the Draft Constitution is informed by no particular ideology? Is it now ‘people-centred but market driven’?

If that sounds too ambivalent let us agree that the epithet ‘revolutionary’ is justified only to the extent that the Draft Constitution (and the wider constitution review process), have demystified constitution making. To view it as representing a ‘Silent Revolution’ has its merits.

To some of us, it sounds more of a ‘Noiseless Political Struggle.’ And I see its greatest strength in its attempt to demystify constitution making. Kumbe Katiba Inazungumzika!    

SOURCE: GUARDIAN ON SUNDAY