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When the constitution is now being rewritten by the High Court
2006-05-23 08:22:41
By Ani Jozeni
Vast surprise is said to have caught up in various circles, among opposition political parties, civic organisations and academia, after the government filed an appeal on at least one of two recent rulings of the High Court.
The first annulled the law on ’hospitality’ during election campaigns, and the second reiterated an earlier High Court judgement in the early 1990s in favour of independent candidates participating in polls.
Both these rulings went down with these civic groups as a bout of fresh air, or common sense.
In other words the courts have only helped the government - especially a well-meaning government like the fourth phase administration - get over the errors of the past.
Since the measures thereof belong to past administrations, it was expected that this transparency-minded government would join the celebration to let go of these two hindrances to freedom.
They are therefore surprised to see that the government is lining up behind two errors, to revive the two pieces of legislation that the courts have found wanting, so annulled.
Since Tanzanian political culture is one among those which were formed out of the radicalism of the 1960s, which Mwalimu anticipated with the Arusha Declaration before it became a worldwide protest - against the Vietnam war - mid 1968, this can’t be surprising.
In an earlier period, there was hardly a unity of purpose between the two groups, as the NGOs sector didn’t exist until much later, when they arose to protest - like government - policies of liberalisation.
Then multipartism brought about a new breed of NGOs, those fighting for human rights and law reform to reflect principles of pluralism.
It is to these two groups that the courts have made elating judgements or rulings in the recent past, and expectations are that the two rulings will stick and become part of the fabric of society, or political morality as such.
Since these groups like other sectors or communities are generally enthusiastic with the moral fibre of the fourth phase leadership, they expect that there is a meeting of minds on the rulings.
All this is consequently disrupted by the two appeal notices on the ’takrima’ ruling as well as that on independent candidates - that the fourth phase doesn’t think differently from the previous.
This criticism seems to have made some impact, and as a result it now seems that the government will be appealing the ruling on private candidates, and ’let sleeping dogs like’ on the takrima issue.
Here perhaps the question that arises is how far CCM itself feels it needs relative freedom to use resources to campaign, but it appears that the president is of a mind that a good CCM candidate doesn’t need takrima.
If one cannot convince an electorate unless he makes a huge presence by festive events, was he indeed the best choice?
And at a different level, for issues that aren’t absolutely risky to the stability of the state, merely to the freedom of individuals to use resources to make a spirited campaign where relevant, it isn’t wise to fight the courts.
That is why the takrima ruling, much as it risks excessive litigation for ’pilau’ type objections to election results, wasn’t by all means bad for the ruling party, though individuals could be affected to different extents.
But the same can’t be said of the ruling on independent candidates, which can make a difference to stability, if not of the state generally, at least of the ruling party’s unity.
So the issue about the fielding of independent candidates is placed at another level, of what the government could possibly do if the Court of Appeal was to reaffirm the current ruling, finding no fault with it, in law.
There would be a sort of constitutional crisis for unlike in the law on hospitality, chances that this issue will be left to constitutional experimentation are largely absent.
In particular this may destabilize further delicate Union balances, where the rigour and discipline of nomination of candidates is part of key architecture.
The happiness of the various civic groups and academia and their dejection once a notice of appeal (albeit on both grounds, hence more reason for their disappointment) is tied to the eternal exuberance of youth that academics often exhibit.
One old line of wisdom in the West during the past century was that ’if a young man isn’t a Marxist by the time he is 20, he isn’t that bright, but if he is still a Marxist by the time he is 40, he wasn’t that bright either.’
The difficulty with plenty of academics and NGOs is that they have remained Marxist well beyond their 40 years of age, that is, youthful rebels.
Mwalimu Nyerere once made a reference to this sort of inclination in his major intervention early in 1994 concerning the ’formation of a government of Tanganyika within the Union,’ the resolution which was approved by the legislature early in that year.
Mwalimu made reference to his astonishment, and that of many people (for those who thought that Mwalimu was in his own way, a ’revolutionary,) with the French demonstrations and riots of May 1968.
He cited a (memorable, seemingly) BBC interview with a senior French official on those events, where the radio reporter asked: why are the French doing this, and to which the official glumly responded: ’They are bored with stability.’
Mwalimu’s translation was ’wamechoshwa na amani,’ which definitely was off the mark, but it was necessary in a political sense.
In other words, one seeks an overhaul of constitutional structures only with the best of reasons, but some pressures for constitution making, in France in the 1968 events and here more or less since 1992, or earlier for the ’three governments’ issue, is only frustration with stability.
While ’stability’ isn’t in actual fact identical with ’peace’ as Mwalimu intimated, yet it is nearly quite the same thing politically, for peace presumes stability, or it is a lull in the storm.
A country without stability is prone to civil war, and some people wish we start approaching this, by making electoral ambition a sacred right.
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