Katiba Watch: Understanding the Constituent Assembly

President Jakaya Kikwete will release the names of the members to the Constituent Assembly today. The sittings are expected to begin in 18 February 2014 in Dodoma.  The Constitution Review Act gives the President power to appoint 201 members of the Constituent Assembly drawn from non-governmental organisations (NGOs), faith-based organisations and all registered political parties. Others include institutions of higher learning, groups of people with special needs, workers’ associations, associations representing farmers, associations representing pastoralists and any other group of persons having common interest. Further to these, it is also be made up of all members of the National Assembly of Tanzania (358) and all members of the House of Representatives of Zanzibar (76) bringing a total 635 members.

 

Pursuant to the Constitution Review Act, Part V on the Convening of a Constituent Assembly, Article 22(3) the President shall publish the names of the members of the Constituent Assembly in the proclamation published in the gazette. Upon the first convening of the Assembly, a chairman and vice-chairman will be elected through a secret ballot by the members. Further to the spirit of the Union, if the chairman is from Mainland Tanzania, the vice shall come from Tanzania Zanzibar. The winner is determined by a simple majority. Standing Orders shall forthwith be established and adopted before members subscribing to an oath or affirmation.

 

Article 25 (1) in part states that the Constituent Assembly shall have and exercise powers to make provisions for the new constitution of Tanzania. It has been rumored that the ruling party CCM will come with an alternative draft constitution.Article 25 (2) states succinctly that the powers of the Constituent Assembly to make provisions for the proposed Constitution shall be be exercised by a Draft Constitution tabled by the Chairman of the Commission and passed by the Constituent Assembly.

 

This indeed, is a crucial step in the constitutional process in Tanzania. Much has been said about the powers bestowed by the president to appoint the members of the assembly, but it is time to accept and move on with the process. With a proposed lifespan of 70 working days, the Assembly ought to utilize this period effectively and efficiently.

Muungano: Let this not overshadow the Constitution Debate

I firmly believe in constitutionalism and the rule of law. I believe proper laws are the drivers of economic development. With Tanzania engaged in a constitution process, am pleased that we as a people have realized the importance of drafting a new constitution. The Constitution Review Commission of Tanzania headed by retired Judge Joseph Warioba has released a second draft in December 2013. (See my blog for other analysis regarding the first draft). 

Topical issues that are central in the constitution have been mainly the issue of the Union, the powers of the president and integrity of civil servants amongst others. I feel that we are so much ingrained in the issues of the political union of Tanzania mainland (Tanganyika) and Tanzania Zanzibar (Zanzibar) and forgetting to debate on other important articles of the proposed draft. I am not belaboring people's interests in the topic of the union debate but much emphasis should also be directed in the discussion of other issues arising from the draft law. Issues such as leadership and integrity, leadership and accountability, natural resource management, human rights and the rule of law, separation of power in the three arms of government, freedoms of press, fostering national unity among others. 

The process should also be owned and driven by people. Civil society organizations should play incisive role in making this process owned by the people and not be a political agenda or a preserve of the politician. 

Katiba Watch Tanzania: Rasimu ya Pili

Tume ya Katiba kuwasilisha Rasimu ya pili kwa rais leo. Mambo muhimu ni pamoja na muundo wa Muungano, jina la Tanganyika, umri wa mgombea urais, madaraka ya rais,  haki za binadamu na mengine mengi.

Yatakayojiri kwenye rasimu ya pili ya katiba ntayawasilisha kesho.

Will a new constitutional solve Tanzania's problems?

I am a firm believer in constitutionalism. The constitution embodies the history and aspirations of a people. It defines a people. Constitutions world over are emblematic of the historical backgrounds and definitions of a people. It is thus most, if not all constitution's preamble start with the words "We the People". 

I have been involved in may debates with people of all walks of life regarding Tanzania's quest for a new constitution. I have always argued that a new constitution will emancipate the poor, drag us out of the abyss of poverty, poor governance and many other ills that plague our country. Theoretically speaking am right. A properly written law will incorporate the fundamental needs of a people. It will protect the disenfranchised people, distribute wealth equally, will seek to better the lives of the rural poor by giving them services such as schools, medical services, water, good infrastructure, affordable food prices. You could imagine of all the nicities that a new constitution will provide. 

But, will a new constitution solve all our problems? Tanzania is a transition. The country is enormously blessed with natural resources, good tourist attractions, enviable hospitality and a  cohesive national culture. Constitutions need to be implemented and supported unequivocally. Sincere political will is also needed. Yes, it can be done.  

Deja vu? Opposition Political Parties Wrangles in Tanzania

This is an opinion piece I wrote for the East african Newspaper last year. Deja vu? In light of Chadema power wrangles, this article provides some hindsight!  

Reading the East African (Jan 9-15, 2012) on ‘Why bitter opposition power struggles benefit ruling CCM’ reignited the debate on the need for formulating a new constitution in Tanzania. The piece unearthed the most pertinent issues that ail Tanzania’s current constitution. Contemporary democratic constitutions world over have served as foundations for progress and development. The current constitution has numerous loopholes, give excess powers to the head of state and lacks a proper checks and balance mechanism within the three arms of government. The constitution has failed to provide a comprehensive law in the area of political parties which the author explored in the issue. 

A Political Parties Act is one fundamental piece of legislation that mould society, economy and political participation, which is a prerequisite for democracy and good governance. The recent wave of expulsion of party members by their political parties in the opposition on various grounds and the clear lack of consensus on the consequences of such a move by various stakeholders such as the Registrar of Political Parties’ office, political parties themselves and the judiciary is a sign of a weak political parties law. The ruling party may be a beneficiary of the internal squabbles of the opposition parties, but it is imperative upon all stakeholders in the constitutional review process to put national interests first. Such a review requires patriotism and unity. Nurturing a progressive liberal democracy starts with building strong ideologue political parties and civil institutions. Let this be a challenge to all players in the constitution review process.  

Tanzania needs "Minimum Constitutional Reforms" for Now

A constitution symposium was organized by the Tanzania Constitution Forum (Jukwaa la Katiba) yesterday in Dar es Salaam. A number of paramount issues were raised by the discussants. Chief among them was the constituent assembly composition. This follows the heated debate in parliament last week over the same issue. A Bill was passed in parliament last week proposing 357 MPs in the United Republic of Tanzania and 81 representatives of the Zanzibar House of Representatives to be part of the constituent assembly. The Bill further proposes that 166 others be appointed by the president meaning that the total membership will be 604. The Chairperson of Jukwa la Katiba Deus Kibamba highlighted a very important issue of minimum reforms. 

As pointed out earlier in this blog, constitutional making process is not a one time event but a long and tedious process. From the look of things, it would be next to impossible for Tanzanians to finalize the tit-bits of the process and then go for a constitutional referendum before the next general elections in 2015. It is believed that there could be a deliberate ploy by certain people to frustrate the process so that the elections are pushed to 2017. The timeline set by the Constitution Review Commission will be hard to see the delivery of a new constitution before the elections of 2015. The suggestion for minimum reforms by Mr. Kibamba are timely and could be of great service to Tanzania at this time. 

In 1997, a Inter-Parties Parliamentary Group (IPPG) in Kenya pressed the then president Daniel Moi for crucial reforms before going into the 1997 general elections. Their calls included the set up of the electoral body in terms of composition and appointment of members, issues of the expanding the Bill of Rights of the minority, equity in political representation and resource distribution. Such calls together with those preceding the 2007 elections are vital lessons for Tanzania.

In truth, it will be diffucult for tanzania to have a new constitution before the elections. A lot of issues remain unsolved and division on issues such as the composition of the constituent assembly further shows we need more time. I urge the Constitution Forum to go ahead and highlight the needed "minimum reforms" and present them to the CRC and even the president. Taking lessons from Kenya, one of the minimum reforms should be the composition of the National Electoral Commission (NEC). The process of choosing commissioners to this body should be a cross-party consultative engagement and NEC should be given much independence. The Chairperson of this body should also be vetted by parliament. 

The call for minimum reforms by Mr. Kibamba are timely and should be taken into consideration.        

Rasimu ya Katiba na Lugha ya Kiswahili: Mjadala Kuntu!

Nicodemus Minde-@decolanga

Ni karibu wiki moja tangia Tume ya Mabadiliko ya Katiba chini ya Mwenyekiti Jaji Mstaafu Joseph Warioba kuzindua rasmi rasimu ya Katiba. Mijadala miongoni mwa Watanzania wengi imekua ni mfumo wa serikali, mazungumzo ya muungano, madaraka ya rais, umri wa rais, na mengine mengi. Nimefuatilia mazungumzo mengi yaliyotokana na uzinduzi huu wa rasimu ya katiba. Ninafuraha kubwa kuona muamko mpya wa majadiliano miongoni mwa Watanzania kuhusianana na rasimu hii. Hakika, Tanzania ipo katika mpito wa mafanikio. Tunamshukuru Mungu.

Wakati Tume ya Mabadiliko ya Katiba ikipokea maoni, moja kati la swala kuu lililovuta hisia ya Watanzania wengi ni lile la lugha ya taifa, Kiswahili. Hata kabla ya mchakato huu wa katiba, kulikua na mijadala kuhusiana na sehemu ya lugha ya Kiswahili kwenye elimu ya Tanzania, na katika Katiba Mpya kwa ujumla. Sekta mbali mbali pamoja na asasi mbali mbali za kieleimu zilitoa mapendekezo yao. Baraza la Kiswahili Tanzania (BAKITA) walisisitiza umuhimu wa lugha ya Kiswahili kwenye elimu. Hivi karibuni, nchi ilishtushwa na matokeo duni ya Kidato cha Nne (Soma ufafanuzi hapa). Wananchi walizungumza kwa kina kuhusu sababu za kufeli kwa wanafuzi, asasi mbali mbali pamoja na idara za serikali walitoa sababu zao. Hivi karibuni, Twaweza, ambalo ni shirika la kiraia lilitoa tathmini kuhusiana na kufeli kwa wanafunzi wa kidato cha nne. Moja ya jambo lililopewa kipaumbele ni matumizi ya lugha ya Kiswahili kwenye ngazi ya sekondari. 

Kwenye ibara ya nne ya rasimu ya Katiba, lugha ya Kiswahili inapewa kipaumbele cha juu. Kifungu cha kwanza katiba ibara hii inaeleza kwamba: Lugha ya Taifa ya Jamhuri ya Muungano ni Kiswahili na itatumika katika mawasiliano rasmi ya kitaifa na kiserikali. Kifungu cha pili kinaeleza: Bila ya kuathiri masharti ya Ibara ndogo ya (1), lugha ya Kiingereza inaweza kutumika kuwa lugha rasmi ya mawasiliano ya kiserikali pale itakapohitajika.

Kwa mtazamo wangu, maelezo na mapendekezo yaliyotolewa na Tume ya Warioba kuhusiana na Kiswahili ni bora. Kwanza, utambulisho wa Mtanzania ni ule unaotokana na ufasiri wa lugha, uongeaji wa lugha ya Kiswahili na juu ya yote utofauti wetu unaotokana na uongeaji wa Kiswahili. Wale wanaopinga matumizi ya Kiswahili sababu yao kuu ni sehemu ya Tanzania miongoni mwa mataifa ya dunia. Wanasema Watanzania watabaki kuwa waongeaji wa Kiswahili wakati lugha ya biashara, lugha ya uhusiano wa kimataifa ni Kiingereza. Rasimu ya Katiba imeweka wazi kwamba lugha ya Kiingereza inaweza tumika katika mazingira ya kipekee. 

Swali kuntu hapa ni je, Kiswahili kibaki kama lugha rasmi, ya kiofisi na lugha ya kufundishia? Ama tubadilishe na tutumie Kiingereza kama lugha ya kufundishia? Ama zote zitumike kwa mkupuo? Hakika kazi tunayo ili kupata muafaka.

Initial Reactions to draft constitution of Tanzania

Nicodemus Minde

The first draft of the proposed new constitution of Tanzania has to a large degree captured crucial and fundamental issues that affect our nation. The unveiling of this draft has not only signaled a new dawn, but also reignited in us the values and ethos that make us who we are. We are at the brink of prosperity. I believe in Tanzania, the land of great people, minds and plenty. This blog shall from today, examine in detail specific sections of the proposed draft and critically evaluate the proposals therewith. As pointed before, writing a new constitution and the process itself is a sign of expansive democratic space in Tanzania. We do not take this lightly, we gladly thank the Almighty for his merciful graces. 

The Constitutional Review Commission (CRC) led by retired judge Joseph Warioba, yesterday unveiled the first draft of the proposed new law after months of extensive collection of ideas, proposals and opinions. Warioba pointed out that there were 1942 meetings which were attended by 1.3 million people. A sneak preview of the proposed law, indicates that a substantial amount of effort went through the process. Here are some of the key highlights:

1. The Federal Type of Government (Serikali ya Shirikisho) between two states; Republic of Tanganyika and Peoples' Republic of Zanzibar.

2.  The emphasis that Kiswahili remains the national and official language of communication in all public and government sectors. That English can be used as an official language when need be.

3.  The Gifts of the nation (Tunu za Taifa); They shall include; humanity, patriotism, integrity, unity, transparency, responsibility, and national language. These define who we are.

4.  Ethics and leadership of public servants. A critical section that will curb corruption, graft, nepotism and embezzlement of public money.

5.   Bill of rights- This champions the rights of every Tanzanian, regardless of gender, race, social status, religion, and physical condition. More expansive and detailed. 

6.  Citizenship: Dual Citizenship omitted. 

7.  Structure of the Union: A Federal Type with three governments:                            

• Government of the United Republic of Tanzania
• Government of the Revolutionary Zanzibar
• Government of Tanzania mainland.  

N/B: The structure of the Union shall be discussed in subsequent articles in this blog.

8. The Executive: Not more than fifteen ministers and their assistants. The Ministries shall be in line with the provisions of the constitution and the government in place.The Minister must have attained at least a university degree and will not be an MP from the union parliament, mainland parliament or representative from the Representative Council of Zanzibar. 

9. Parliament: Key areas; There shall be a Union Parliament. An MP shall have a 3 term limit of 5 years, after which he shall be ineligible to run. A recall clause. An MP can be recalled by his constituents if they see he/she is not working as mandated.

10. There shall be a Union Judiciary made up of a Supreme Court and Court of Appeal.

11. An Independent Electoral Commission shall be instituted.

12. There shall be a Ethics, Leadership and Responsibility Commission.

13. There shall also be a National Commission on Human Rights.

Add-ons: Union Matters

1. Constitution and Authority of the United Republic of Tanzania
2. National Security of the United Republic of Tanzania
3. Citizenship and Immigration
4. Money and Central Bank of Tanzania
5. Foreign Affairs
6. Registration of Political Parties and;
7. Taxation of commodities and revenues that do not have tax resulting from union matters.

More on the Draft Constitution in subsequent postings.

See draft of the Proposed Constitution and Further reading here.

 

 

Tanzania's Constitutional Review Commission to release first draft this afternoon

Nicodemus Minde

The Constitutional Review Commission will today unveil the first draft of the proposed new constitution. In this historic event, the CRC will outline the proposed new constitution before a televised live broadcast from Karimjee Hall. Tanzanians wait with baited breathe to see what the new constitutional will be like. After months of intense collection of views, deliberations and critical constitutional review, the Commission chairman Joseph Warioba will present us a proposed new law. The process has been largely successful in terms of citizen engagement, civil society input, political party proposals, inputs by various religious organizations and private citizens. 

Tanzania comes of age in this landmark occasion when the CRC unveils the first draft. The CRC process in itself earmarks the onset of a new constitutional order in the country. Tanzanians wait to see what the draft will say on critical issues such as the union between Tanzania mainland and Tanzania-Zanzibar. Of crucial importance shall be the system of governance and the nature of the union. Will it be a sole unitary state? or will it be a semi structured federal or decentralized state? will it be a two tier government system? This remains the most important section, which if correctly outlined and consented by the people shall either salvage or rock the union. Other crucial elements shall be the powers of the president, which must be trimmed and checked if we really envisage a democratic society. The role of parliament and the where the president shall draw his cabinet is also crucial. Civil liberties and rights of citizens is also of crucial importance. The rights of disabled members of society, inclusivity, increased democratic space among many are also areas that the draft should address.

Another very important segment that the draft should address is the role of provincial administration. The provincial administration has for decades been used as a ruling party arm where retired army generals who are CCM bigwigs, use the office as a CCM machinery for controlling regional resources. 

The issue of curbing the ever increasing religious intolerance should also be addressed. I trust that the draft will meet the expectations of the Tanzanian people. God bless Tanzania!      

The Tanganyika-Zanzibar Union: 49 years of a beleaguered marriage of convenience

Nicodemus Minde

The United Republic of Tanzania today celebrates 49 years of political union between Tanzania mainland and Tanzania Zanzibar. I am explicit in naming Zanzibar as Tanzania Zanzibar and the mainland as Tanzania mainland and not Tanganyika. The nomenclature of the the constituent entities of the union, though not said explicitly, has also led to the antagonism between the two. This is a story for another day. Analysts and political pundits have debated for many years on the constitutionality of the union, the status of the union, and the prospects for the union. 

For more than forty years Tanzania has remained the only Union of independent states in Africa. There has always been much debate on this Union both before the Union took place as well as after its happening. Prof. Issa Shivji describes the union as a pragmatic one born out of caution and not necessity. As he aptly puts it, "The Union between Tanganyika and Zanzibar was determined by two governments for the interests of Africa and African Unity. There was no other reason. Further to this, Nyerere has been quoted saying “...No, I’m not joking … I fear Zanzibar will be a big headache for us." This was before the then Tanganyika gained independence. The union was hurried. The ratification of the articles of the union was hurried and a CIA Intelligence Memo assessing the Union four years after its conception asserted that the union was never popular in Zanzibar and that "it was only Tanganyika's steam-roller tactics that forced the issue." There is no evident to date of a consultation process in the isles and to some degree in the mainland. The negotiations of the union were largely 'informal' and the only 'legal instruments' were the articles of the union which were haphazard and lacked the concrete legal foundations. The so-called Union of Zanzibar and Tanganyika Law, 1964 published in the Government Gazette of the United Republic was also wanting with regard to procedure, legality and constitutionalism. Laying strong legal and constitutional foundations is important for state survival and unity. The union has withstood the tests of fissure and collapse only through Nyerere's leadership and CCM manipulation of election results (after Tanzania became a multiparty state).

The ghosts of shaky foundations of the union need to be exorcised. The marriage between the two was out of convenience. The marriage bore resentment from the people of Zanzibar. The children of the union are disenfranchised. The leaders across the divide politic. Either side of the union has its wishes. There are Tanzanian Zanzibaris who want secession, there are those who want more autonomy, there are those that want unity. The Tanzanians from the mainland also want the status union to be addressed. With the drafting of the new constitution ongoing, there is need for a comprehensive discussion on this matter. The Constitutional Review Committee gave a time frame for people, political parties and other interest groups to give their opinions on matters they would love to be addressed in the new law. There has been a surreal mentality from most Tanzanians that come the next elections, the country shall have a new constitution. Constitutions are not built in five years. They are built on a long time reflection and contemplation of a nation's needs and aspirations. Having been born on shaky foundations, Tanzania has the greatest opportunity to rethink the union. The union started on rather shaky legal and legal foundations. A critical renegotiation of the union ought to be a key priority of the Constitutional Review Committee.

Restructuring Tanzanian Constitution: Why a Decentralized System is best

The oldest constitutions in the world were framed in the 17th century and have been described as revolutionary pacts because they ushered in new political systems. After decades of a permeable and loosely constructed constitution, Tanzania is now in the process of drafting a supreme law that will address and map the future of Tanzania. The Constitutional Review Commission under the chairmanship of retired judge Joseph Warioba is now in the stages of creating constitutional councils (mabaraza ya katiba). The 1977 constitution was born after the political union of Tanganyika and Zanzibar. The law, as Issa Shivji puts it, derived its legal authority from the Articles of the Union. The process meant that Zanzibar lost its autonomy and was succeeded by Tanzania. International law, under the topic of state succession will best explain the 'dissolution' of Zanzibar and how its autonomy was swallowed by mainland Tanzania. This is a sensitive topic, which has elicited sharp reactions from Tanzania Zanzibar politicians. 

The ascension of the 1977 constitution, declared by virtue of law, the supremacy of single party dictatorship in Tanzania under the CCM banner. I don't intend to delve into the ramifications thereof of a single party rule. Of crucial importance today shall be the decentralization form of government through a contextual analysis of Tanzania. 

Tanzania has been operating as a loosely conceptualized unitary state. There is a union parliament, house of representative in Zanzibar, a union president and the president of Zanzibar. Zanzibar MPs have always called for more autonomy of the isle. Bickering over the 'state' of Zanzibar have become a norm. In addressing the dissatisfaction of Zanzibar on the degree of autonomy, a decentralized form of government can best deal with this.

Decentralization is a mechanism that disperses authority from the central government to other institutions or levels of government, and as such it becomes one solution to many problems that arise over dissatisfaction by constituent members. Decentralization can involve assigning sub-national levels of government elements of 'self-rule' by which they obtain the authority to regulate and/or run certain functions or services on their own such as healthcare, primary education and can also include the establishing of a system of shared rule, allowing sub-national entities to be involved in national rule making, often through delegation of duties. The object of decentralization remains devolution of services, and creating national unity within a polity. 

A decentralized form of government will see more economic development through federal state, regional or county based government. Services shall be devolved to local constituents, meaning that the management of these basic necessities will be at the plate of local government. Appeasing Zanzibar can best be done through sub-national devolution where these units are given autonomy as constituent entities of a territory. With over 26 regions, Tanzania can best serve the needs of the now 45 million people better through a well structured devolved system of government. The positive effects of decentralization of power are among many; the limitation of authoritarianism at national level brought about by dictatorial political parties and individuals, increasing responsiveness to the needs and preference of the people, encouraging positive, active approaches to government and policy development. For a country that is well blessed with resources, good climate, tourism (just to mention a few), Tanzania;s form of decentralization can be a model for prosperity. Though, negative aspects can crop such as harmful competition among regions, deficiency in human and financial resources, a proper law and good leadership can instigate progress. The depth of decentralization can go as far as judicial/legal devolution, revenue devolution, fiscal devolution among others. A constitutional edifice that champions this will no doubt bring prosperity.

Tume ya Mabadiliko ya Katiba Imeshindwa kwenda na wakati

Nicodemus Minde

Tupo kwenye zama za teknolojia na utandawazi. Mambo yote maisha ya mwanadamu siku hizi yanafanya kutumia ujumuiko wa watu wote duniani. Jumuiya ya dunia kwasasa inaletwa pamoja na mbinu za kisasa ambazo hujuisha mambo kama matumizi ya wavuti, mitandao ya kijamii, tarakilishi, barua pepe na kadhalika. Matumizi haya yamesaidia sana katika ukuzaji na ukuzwaji wa biashara, taasisi mbali mbali, mashirika yasio ya kiserakali, asasi za dini, taasisi za elimu, mashirika ya kijamii. Mashirika haya pamoja na asasi hizi zimetumia jukwaa hili la utandawazi kupanuka kibiashara, kitaasisi, kijamii na kadhalika. Upanuzi huu umesaidia makampuni haya na taasisi hizi kujiuza na kuhabarisha na kusambaza habari kuhusiana na taarifa zao, hoja zao na kadhalika.

Nimeshangazwa na tovuti ya tume ya mabadiliko ya katiba Tanzania kutofuata mkondo huu ilikusaidia kuhabarisha umma ya Tanzania pamoja na jamii nzima ya kimataifa kuhusiana na maendeleo yao katika mchakato mzima wa kukusanya maoni, taarifa za tume na mambo mengine yanayohusu tume hio.

 

Tovuti rasmi ya tume ya Mabadiliko ya Katiba ya Tanzania imeshindwa kutoa habari muhimu zinazohusu maoni ya vyama, maoni ya taasisi mbali mbali, maoni binafsi na hata wameshindwa kuwa na kipengele (link) ya habari zinazotokana na maoni ya katiba, taarifa zitokanzo na mchakato wa katiba na hata mienendo mbali mbali ya Katiba katika mataifa mbali mbali.

Rai yangu ni kwa tume hii. Taarifa ni kitu muhimu sana katika mchakato wa kuandaa katiba. Kuna haja kubwa kwa tume hii kuweka taarifa muhimu zitokanazo na maoni kuhusu katika. Nimefurahishwa na vipengele vilivyowekwa kwenye tovuti yao. Sheria kuhusu mabadiliko ya katiba imewekwa ndani, katiba ya sasa pia imewekwa ndani, pamoja na muundo wa tume hio inayoongozwa na Jaji Mkuu Mstaafu Joseph Warioba. 

Tovuti inapaswa kujumuisha madhalani maoni kuhusiana na muundo wa nchi, maoni kuhusiana na Muungano, sera mbali mbali za chama, mustakabali wa maendeleo ya mchakato huu. Misingi ya maendeleo ambalyo ndio chimbuko la mchakato huu wa mabadiliko ya katika inajumuisha azma ya upanuzi wa matumizi ya teknojia, upasishaji habari, kuleta watu pamoja na kadhalika.

Hii ndio rai yangu.

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 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.