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

 

   

The Real War on women in India

Via the Diplomat 

The brutal gang-rape of a 23-year old student in Delhi and her subsequent death has triggered intense, unrelenting outrage across India. For weeks now, thousands of Indians have poured into the streets every day to demand her assailants be put to death.

Pre-trial proceedings have begun for five of the six accused— with the sixth man believed to be awaiting trial under the Juvenile Justice Act because of his status as a minor. The other five have been charged with abduction, rape, and murder among other crimes.

The media has begun calling the 23-year-old victim, whose identity remains concealed, a number of different names including Nirbhaya (fearless in Hindi), Damini (lightning) and Jagruti (awakening). Indeed, the horrific violence she has endured appears to have woken India from its willful neglect of the rights of its female population.

Sexual violence is pervasive in India. According to National Crime Records Bureau statistics, 24,206 rapes were recorded in 2011, equivalent to one rape every 28 minutes. These figures barely scratch the surface of the problem, however, given that most cases of sexual violence go unreported because victims choose to remain silent for a host of different reasons, including the social stigma attached to rape victims. Questions are often raised about the character of the victim, such as why she was out late at night or what she wore or did to provoke the assault. Even in the case of Nirbhaya, controversial “spiritual” guru Asaram Bapu made headlines when he blamed her for the rape because she failed to call her assailants “brother” while they raped her. 

"She should have taken God's name and held their hands and feet… then the misconduct wouldn't have happened," Bapu told an audience of supporters. "Mistake is never from one side alone."

Many times the assailant is a relative or close acquaintance of the victim and rape survivors are often pressured to just “shut up and forget about it,” a Bangalore-based rape survivor told The Diplomat. In her case, it had been an uncle who had raped her for years.

Rape victims are also deterred from reporting the crime because Indian policemen are notoriously awful at handling cases of sexual assault. It is not uncommon for police officers to flatly refuse to file a victim’s complaint, especially if the person(s) accused are of a dominant caste or have political connections. Besides, many women do not feel safe going to an all-male police station.

In any case, convincing police to file a complaint in no way ensures a victim will receive justice. In 2011, just 26.4% of rape cases ended in convictions (to be fair, India is hardly alone in failing miserably in this category; in 2008, for instance, the UK conviction rate in rape cases was an abysmal 5.7%.)

In the wake of Nirbhaya’s tragedy, many are calling for police reforms, heightened security for women in public places, and fast-tracking cases of rape in the court system. Some are demanding harsher punishments for convicted rapists, including the death penalty and chemical castration.

But imposing the death penalty or chemically castrating rapists will not solve the problem a Delhi police officer told The Diplomat, pointing out that if the death penalty was given to rapists many might decide to murder their victims in order to escape prosecution. Besides, the officer adds, there is no evidence that capital punishment deters violent criminals. In the case of rape the prospects of it doing so are especially low. “Given the low conviction rate in rape cases, the severity of the punishment is irrelevant,” the police officer says. 

On the other hand, demand for punishing rapists with chemical castration points to larger issues; namely, the widely-held “misperception that rape is about sex when it is really about power,” observes Kavita Krishnan, secretary of the All India Progressive Women’s Association, a women’s advocacy group in Delhi. The prevalence of this misperception was recently illustrated in a dramatic way in a rape case near the town of Halvad in the western state of Gujarat. According to media reports, police were initially tipped off by someone close to the victim, who told them that over the last two years a 32-year-old woman had been raped at least 40 times by her brother-in-law and 70-year-old father-in-law, both of whom she and her husband lived with. When questioned by police, the two men quickly confessed to “repeatedly” raping the woman “almost every day” according to an arresting officer, but defended their actions by telling the officers that the women was in need of “sexual intimacy” because her husband had become sexually impotent a few years earlier after contracting an illness. The officer assured reporters that his team was investigating this claim by making the victim’s husband undergo medical tests. “Only after the medical tests can it be ascertained whether he turned impotent or not,” the officer said. 

To prevent sexual violence, Krishnan says India should go beyond new legislation to focus on more substantive issues like the gender bias of India’s existing laws and legal system. The focus, Krishnan argues, “Should not be on whether our laws are tough enough but whether they are gender-just enough.”

To illustrate this point Krishnan points out that Indian law currently defines rape in a strikingly narrow way, essentially only recognizing penile penetration of the vagina as rape. This definition needs to be expanded to include such barbaric crimes as inserting objects into women and marital rape. The country must go beyond rape as well and start getting serious about prosecuting other crimes against women, such as stalking, publically stripping, and other forms of sexual humiliation. The country must also investigate sexual assaults in the context of communal and caste violence, as well as custodial rape.”

While police and legal reforms are important, none of these will be effective without India waging a war on its misogynist culture. A deeply patriarchal society, Indian society mistreats women throughout their lives. In fact, gender discrimination begins before birth in the form of the disproportionately large number of female fetuses that parents choose to abort. The problem is so widespread that it is skewing India’s sex ratio: According to the 2011 national census, for every 1,000 men that are in India there are 940 women. By contrast, in North America and Europe the ratio is closer to 1,050 women for every 1,000 men. And that is just the national average, with certain parts of the country experiencing far greater imbalances. The worst offenders in this regard are the capital city of Delhi, which has 866 women for every 1,000 men, and the northern states of Punjab and Haryana, where the women-to-men ratios are 893 and 877 women for every 1,000 men respectively.

Sadly, surviving birth guarantees little for an Indian female. Many times she will continue to be the last one to be fed and to receive health care or an education. As a result, she is much more likely to experience problems like child malnutrition then her male counterparts. And this discrimination and violence will only intensify as she grows older. On nearly every social indicator women in India are worse off than men. A 2011 UN report found women worse off in India than in countries like China, Iraq, and even Saudi Arabia.

Many women are sexually harassed on streets and in the workplace, molested in buses and trains and raped at home and in public spaces. If they spurn the unwanted advances of men they risk becoming victims of acid attacks. Some are killed over dowry disputes, despite laws banning the giving or taking of dowry. India’s patriarchal culture and deep-rooted misogyny justify violence against women. It encourages men (and women) to believe that women challenging this culture, however mild that challenge might be, deserve to be “taught a lesson.” A misogynist culture breeds a culture of rape, and then blames the victims for the culture's existence. India mustn't be lulled into believing that this mindset is confined to feudal elements of rural society or poor and undereducated neighborhoods in the city, as is often suggested by the media. Misogyny pervades the thinking of all strata of Indian society, from its police and judges to its politicians and intellectuals.

Indeed, several members of the Uttar Pradesh state assembly are currently facing serious charges including gang rape.  Nonetheless, Parliamentarian Abhijit Mukherjee, who is the son of India’s President Pranab Mukherjee, dismissed recent protesters, as “painted and dented women.” Vibha Rao, chairperson of Chhattisgarh State’s Women Commission, argues that victims of sexual assaults are “equally responsible” for the crimes committed against them because they “display their bodies and indulge in various obscene activities.” In April 2012, Tehelka News magazine published an article entitled “The rape’s will go on” that was based on the interviews it conducted with 30 policemen who worked in Delhi and surrounding areas. The officers’ views were shocking. Several expressed the viewpoint that rape victims often “asked for it” or at least deserved it because they went to pubs or worked as prostitutes. Some cops even said that if a woman has consensual sex with one man, she “shouldn’t complain if others joined in.””

What changes can India realistically expect if the very people who are responsible for protecting women, ensuring justice, and legislating gender-just laws hold such callous views towards women? Clearly, the battle against patriarchy will be a long one. Activists are calling for mandating gender-sensitization programs for police and parliamentarians. Others advocate educating all students on gender issues. While supportive in theory, the Bangalore-based rape survivor warns that change won’t come through an hour-long weekly class on “women’s issues,” but instead requires a much more comprehensive overhaul of all national curriculum to make it more gender-sensitive.

Importantly, this mindset needs to be changed within the home. Indians need to love and treat their children of both sexes equally, and instill in their sons the importance of respecting women. Despite the immensity of the challenge, activists like Krishnan are encouraged by the recent mass protests. Before the last few weeks, she says, only feminists and women’s groups talked about the corrosive impact of India’s patriarchal culture. Now women and men are taking to the streets in unison, and standing shoulder to shoulder in demanding much needed change.

India Rape Dr. Sudha Ramachandran is a political analyst based in Bangalore, India. She writes on South Asian political and security issues. 

The State of Zanzibar? This Proposal may jeopardize the Union

Nicodemus Minde, Arusha, Tanzania

Having read a snick preview of Chadema’s proposal to the Constitutional Review Committee of Tanzania, I must admit that the proposal of the type of government sets a dangerous precedence to the existence of the union government. The proposal reads; there will be a united republic of Tanzania made up of the state of Tanganyika and the state of Zanzibar (loosely translated from Swahili). The current Constitution of 1977 reads in Chapter One, Part 1 on the United Republic and its People (1) Tanzania is one State and is a sovereign United Republic and (2) The territory of the United Republic consists of the whole of the area of Mainland Tanzania and the whole of the area of Tanzania Zanzibar, and includes the territorial waters. Besides the numerous flaws in the current constitution, the above mentioned provision has adequately defined and preserved the nature of the political union. A constitution is a document that defined the beliefs and aspirations of a people. It embodies the dreams of a nation across generations. The founding father of Tanzania Mwalimu Nyerere believed in a political union with Zanzibar. The union has withstood many shakeups and myriads of opposition. Despite the setbacks, we as a people of this republic are reminded of the dreams of our forefathers; the dream of keeping alive the union.

One of the challenges the union has faced over the years has been that of the question of the statehood of Zanzibar. In international law, the best known formulation of the basic criteria of statehood is laid down in Article 1 of the Montevideo Convention on the Rights and Duties of States, 1933. In fulfilling this capacity, states are commonly termed as to possess international legal personality. Subjects of international law include persons and entities capable of possessing international rights and duties under international law and endowed with the capacity to take certain types of action on the international plane. Many scholars have argued on the classification of Zanzibar as state. Calls for secession by Zanzibar have largely been on the grounds that it be granted self-determination which is the character of a state.

A critical overview of the proposal of the type and nature of the union government by Chadema threatens the existence of the union. I say this based on the following grounds; (1) By terming Zanzibar a state/country, it will ignite the debate on whether or not Zanzibar possess international legal personality pursuant to international law; (2) in the wake of this debate, holding on to the union whether through a referendum, as proposed by Chadema in the case of either parties wants to opt out of the union, will further raise political tensions which could lead to the breakup of the union.

My position is that whatever proposals are made up by individuals, institutions, and political parties on the type and nature of government should be aimed at maintaining and preserving the political union. This will prove an arduous task since it will be hard to please everyone. But a carefully thought out and all inclusive and well engaged process shall suffice and formulate the appropriate form of government.    

Maoni Ya Chadema Kuhusu Katiba Mpya

Via Chadema Blog

A. JAMHURI YA MUUNGANO WA TANZANIA NA MUUNDO WAKE
1. Kutakuwa na Jamhuri ya Muungano wa Tanzania ambayo itakuwa ni shirikisho lililoundwa na nchi ya Tanganyika na nchi ya Zanzibar.
2. Kutakiwa na haki kamili ya kila nchi inayounda Jamhuri ya Muungano kujitoa katika Muungano lakini haki hiyo itatumiwa kwa masharti kwamba uamuzi wa kujitoa katika Jamhuri ya Muungano lazima upate ridhaa wa upande husika kwa kura ya maoni (referendum/plebiscite) kwa idadi isiyopungua theluthi mbili ya kura zote halali.
3. Kutakuwa na Serikali ya Muungano ambayo itakuwa na madaraka juu ya mambo ya Muungano pekee. Mambo ya Muungano yatakuwa yafuatayo:
(a) Mambo ya nje yanayohusu masuala ya diplomasia lakini yasiyohusu ushirikiano wa kimataifa;
(b) Ulinzi na usalama isipokuwa kwa masuala ya polisi na magereza;
(c) Mahakama Kuu ya Jamhuri ya Muungano (Supreme Court of the United Republic);
(d) Uraia na uhamiaji;
(e) Sera za fedha na sarafu;
(f) Sera za biashara ya kimataifa na masuala ya forodha;
(g) Masuala ya ithibati ya elimu ya juu.
4. Kutakuwa na Rais wa Jamhuri ya Muungano ambaye atakuwa Mkuu wa Serikali ya Muungano, Mkuu wa Nchi na Amiri Jeshi Mkuu wa majeshi ya Ulinzi ya Jamhuri ya Muungano.
5. Rais wa Jamhuri ya Muungano atachaguliwa na Wajumbe wote wa Bunge la Muungano, Bunge la Tanganyika, Baraza la Wawakilishi Zanzibar, wenyeviti, mameya na magavana wote.
6. Rais wa Jamhuri ya Muungano atachaguliwa kwa kipindi kimoja cha miaka mitano na anaweza kuchaguliwa kwa kipindi kingine kimoja cha miaka mitano, na atachaguliwa kwa msingi wa kuachiana zamu ya kushikilia madaraka ya Rais wa Jamhuri ya Muungano Kati ya nchi mbili zinazounda Jamhuri ya Muungano.

Chadema Blog: CHADEMA yanasa wasaliti

Chadema Blog: CHADEMA yanasa wasaliti:  SHONZA, MCHANGE, MWAMPAMBA WATIMULIWA BAVICHA MBUNGE wa Maswa Magharibi, John Shibuda (CHADEMA), amekalia kuti kavu kutokana na kut...

The Trouble with Tanzania

Introduction

I am not wise enough to point out the trouble with Tanzania, neither am I old enough to even understand the complexity of Tanzanian history to state the trouble of Tanzania. Literature guru Chinua Achebe wrote the short précis of The Trouble with Nigeria in 1983 to explain the troubles that plagued the country ranging from vices of corruption, tribalism, the cult of mediocrity, indiscipline among others. A critical analysis of the 67 paged book by Achebe can be juxtaposed with the general trouble of the politics of the African societies. The failure of leadership was the underlying theme of the book that explained the demagoguery of Nigerian leadership which can narrate the other troubles that ail the country.

“The trouble with Nigeria is simply and squarely a failure of leadership. There is nothing basically wrong with the Nigerian character. There is nothing wrong with the Nigerian land or climate of water or air or anything else. The Nigerian problem is the unwillingness or inability of its leaders to rise to the responsibility, to the challenge of personal example which are the hallmarks of true leadership.”  

The trouble in Nigeria as explained by Achebe is synonymous to the African political setting. As pointed out earlier, I am not wise or old enough to state the trouble with Tanzania, but I will try to place myself into the Tanzanian political and societal setting to explain what could be wrong with us. There is nothing wrong with the Tanzanian lad or climate or air. On the contrary, Tanzania is a blessed country in many fronts. Tanzania is the land of Kilimanjaro, the land of the great Serengeti; the land of Zanzibar, the land of Lake Tanganyika. Tanzania is blessed with abundant natural resources, good climate and weather. The people of Tanzania are beautiful and hospitable. Tanzania is the cradle of civilization. The Olduvai Gorge is one of the most important pale-anthropological sites in the world and has been instrumental in furthering the understanding of early human evolution. Tanzania is the home of Mwalimu Julius Nyerere; the great thinker of African Socialism as explained by the Ujamaa philosophy. 

There is nothing basically wrong with Tanzania as was conceived after the political merger of Tanganyika and Zanzibar in 1964. Tanzania’s problem is as Achebe explained a failure of leadership. This failure has resulted in a myriad of other troubles that I will try to explain in a series format.

Cowardice

William Shakespeare once said “Our doubts are traitors, and make us lose the good we oft might win, by fearing to attempt.”

................Continues tomorrow.