Saturday, 12 January 2013

Constitutional Legitimacy Outcomes-Lessons for Tanzania

Nicodemus Minde
Tanzania is in the process of drafting a new constitution. The process is guided by the Constitutional Review Act Chapter 83 of under the revised edition of 2012.  The Act provides for the establishment of the Constitutional Review Commission for purposes of co-ordination and collection of public opinions on the Constitution; to examine and analyze public opinions; to provide for fora for constitutional review; to provide for preparation and submission of report on the public opinions; to provide for the procedure to constitute the Constituent Assembly, the conduct of referendum and to provide for related matters. The Act as stipulated in article 2 ‘shall apply to Mainland Tanzania and Tanzania Zanzibar and therein signed by the Attorney General of Tanzania Fredrick Werema.

Constitutional making is aimed to ensure that the outcomes of constitutional building processes are legitimate and broadly accepted. The outcomes of constitutional building are legitimate when they are broadly accepted and national owned. Constitutional making is not a one-time event, rather it is a long time and historical process that may be highly contentious, highly volatile and could cause massive divisions if not handled well. Constitution building is defined expansively as a long-term and historical process. Constitution building has often entailed ‘grand design’ and wholesale redrafting and implementation of a new constitution, even though substantial revision and reform of an existing constitution is another option.
Constitutional building should be aimed at meeting three key legitimate ends. As Tanzania delves into this process, we should know that the legitimacy of a constitution is multidimensional. They include;
Legal legitimacy-this is gained through conformity to relevant legal rules, principles and norms. Legal legitimacy is a crucial component of building a strong democracy with strong observance to the rule of law.
Political legitimacy-this is reflected in the national ownership or sovereign independence of the people who adopt constitution, a collective that may be composed of distinct plural groups. This highlights another ingredient of democracy which is inclusivity.
Moral legitimacy-is embodied by a close relationship between the constitution and the shared values that underlie the moral basis of the state; in addition, the constitution may aim at goals much as societal reconciliation, forgiveness after prolonged victimization, social inclusion and moral rejuvenation of the state.

With help from the International Institute for Democracy and Electoral Assistance (International IDEA)-A Practical Guide to Constitution Building


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