The CITIZEN ON SUNDAY Newspaper of 19th March, 2017, carried the following news item: “The Tanzania Constitution Forum (TCF) now wants the Government to allocate funds to the resumption of the Constitution writing process in the next budget. . . Speaking to journalists at TCF Headquarters, the Organization’s Chairman, Mr. Deus Kibamba, reiterated calls for President John Magufuli to kick-start the stalled process”.
In view of this ‘new push’ for the resumption of the new Constitution-making process, and as a small contribution to that debate, I have chosen this subject for discussion in today’s article. I propose to raise two specific points.
One, is this ‘new push’ really necessary at this point in time? And two, is it really proper to ignore President Magufuli’s clearly stated position, namely that the matter of enacting a new Constitution of the United Republic is not one of his urgent priorities?
Is the ‘new push’ really necessary? In my humble view, and on the basis of available records, it is quite clear that currently, there is very little public interest in this matter of making a new Constitution.
But beyond the present, the records also show that there has always been very little expressed public interest in this matter of Constitutionmaking, or even of Constitutional amendment processes, whenever they were conducted.
This particular record of very little public interest in matters relating to Constitution- making, or Constitutional amendment, is most probably what supports, and provides added strength, to President Magufuli’s position, that the matter of a new Constitution is really not an issue which requires to be given urgent priority.
In other words, it does not qualify for priority treatment because this ‘new push’ is not coming from demands being made by the general public it is only coming from what may be called a “pressure group”, which, admittedly, is properly registered and recognized, as ‘Jukwaa la Katiba’.
There has always been little public interest in matters relating to the Constitution. Past experience shows that in this matter of making a new Constitution of the United Republic, or even of making a major review of the existing Constitution, there has always been relatively little active participation by members of the general public.
This situation is readily understandable, because it is due to the fact that the Constitution is not the kind of ‘bread-and-butter’ issue which affects the everyday life or the daily concerns of the ordinary people.
For that reason, even in Constitution-making or Constitutional review exercises which have been conducted in the past, there has always been surprisingly little active interest among the ordinary people, if you take into consideration the relatively small numbers of people who have been participating in these events, even though certain elaborate arrangements were put in place in order to obtain the views of as many members of the public as possible, through the appointment of Presidential Commissions which were mandated to undertake this particular task.
For example, the Report of the Nyalali Commission, which was appointed by former President Ali Hassan Mwinyi in 1991, (I was a member of that Commission) shows that the Commission held public meetings in all the 25 Regions of the country, both in Tanzania Mainland and in Zanzibar and received views and opinions from a total of only 36,299 persons (32,279 from Tanzania Mainland; 3,679 from Zanzibar), plus 341 other nationals residing outside the country.
Similarly, the Report of the Kisanga Commission which was appointed by former President Benjamin Mkapa in 1998, shows that this commission also held public meetings in all the Districts of all the 25 Regions of the country, and that approximately 600,000 people participated in these meetings. But even the more recent Warioba Commission which was appointed by former President Jakaya Kikwete in 2011, did not attract any more significant public attention.
That Commission’s Report shows that it collected a total of only 684,303 views and opinions from the public. These are obviously very small numbers, considering the huge total adult population of Tanzanian, as shown in the reports of the 2012 population census.
Is it proper to ignore President Magufuli’s position on this matter? The above quoted statistics appear to confirm the point that there has always been relatively little public interest in matters relating to Constitution-making and Constitutional review.
This is what leads me to the presumption that because the Constitution is not really a matter which affects the lives of ordinary people on a daily basis, and that is why it cannot be a matter which should be given urgent priority because it appears to be of significantly little concern to them. And that is why it would be improper to ignore President Magufuli’s position, of giving no priority to this matter. The Referendum requirement.
As of now, all the preliminary stages and requirements for enacting a new Constitution have already been completed. Namely, the Constituent Assembly has already adopted a draft of the new Constitution in October 2014.
Hence, all that remains is the final stage of holding a referendum, which will signify the new Constitution’s final approval (or disapproval) by the people of Tanzania, as required by law. Civic education is required prior to the Referendum. It is my submission that proper and adequate preparations are urgently needed for the success of this referendum event, for two important reasons. One, this is a vitally important final step in the whole process, in the sense that it cannot possibly be avoided.
But the second and perhaps of even greater importance, is that this is an activity which will be taking place for the first time ever in the history of Constitutionmaking in this country. Thus, no one has any previous experience of participating in a Referendum.
For these reasons, it is inevitable that the voters in this Referendum will require some assistance in the form of a tailor-made programme of civic education, which will enable them to participate meaningfully in the said referendum.
Furthermore, in the light of what we have said above regarding the relatively little active public interest in matters relating to the Constitution, it appears necessary to re-kindle the general public’s interest and enthusiasm regarding the importance and the role, of the anticipated referendum, in order to enhance their level of understanding and thus facilitating the desired meaningful participation in it. In other words, there is need for ‘voter education’, before the referendum actually takes place.
My small contribution to this voter education This section of my article is primarily intended to make a small contribution to the said tailor-made civic education which I am recommending herein. I wish in particular to draw attention to one specific point, which is that the Constitution of a country is both a “legal” as well as a “political” document. But what exactly is a Constitution?
Defining the Constitution. The Constitution is the country’s basic law, which creates the three principal organs of governance generally known as the Executive, the Legislature, and the Judiciary.
It describes the functions of each of these institutions, and invests them with the requisite power and authority. In other words, the Constitution is the legal fountain of legitimate political power and authority. For that reason, it enjoys a special position of authority in a country’s legal system.
The following features of the country’s Constitution should be particularly noted: (i) The Constitution is a political document The country’s Constitution is undoubtedly a political document.
That is why it requires political endorsement by the people themselves through a referendum. Although Constitutions are undisputedly legal documents, their primary function is the control of political power and authority. They make provision for the establishment of certain devices, known as ‘checks and balances’, which are designed to prevent the misuse and/or abuse of power by politicians.
It is the political nature of the Constitution which makes it necessary for its contents to emanate from the people themselves; using mechanisms such as the appointment of Presidential Commissions (such as the recent Warioba Commission and previously the Nyalali and Kissanga Commissions), in order to give the people the opportunity to express their views and opinions regarding the kind of constitution they want. (ii) The Constitution is a legal document.
The Constitution is a legal document because it is the supreme, fundamental law of the country. This is what explains why it must be enacted through a special procedure not applicable to other ordinary laws of the land.
For example, the Constitution must be enacted by a special body known as a ‘Constituent Assembly’; unlike the ordinary laws of the land which are enacted by the country’s ordinary Parliament. Similarly, if the need arises for the Constitution to be amended, it again requires special procedures for its amendment.
Specifically, the proposed amendment has to be adopted by a two-thirds majority of the members of Parliament for it to become valid; unlike the ordinary laws of the land, which can be amended by Parliament just by simple majority.
These special procedures are what give the Constitution a special position of authority within the country’s legal order, commonly described as ‘the sanctity of the Constitution’; or “the supremacy of the Constitution”.
The contents of our proposed new Constitution. Understanding the contents of the proposed new Constitution is an essential part of the recommended civic education programme. For that purpose, I have attempted to give a brief summary of its main provisions in the paragraphs which follow. The proposed new Constitution of the United Republic of Tanzania fits exactly into the definition of a ‘Constitution’ which we presented above, specifically in the following areas:- (i) It has provisions which create the three principal organs of governance, namely the Executive, i.e the Governments of the United Republic of Tanzania and the Revolutionary Government of Zanzibar. (
Chapters Eight and Eleven); It also creates the Union Legislature, i.e the Parliament of the United republic, and the Zanzibar House of Representatives. (Chapters Ten and Eleven); and creates the Judiciary, namely the Courts of law (Chapter Twelve).
Furthermore, the proposed new Constitution also prescribes the functions of each of these organs, and invests them with the requisite power and authority for the carrying out of their respective functions. (ii) But apart from the three principal organs, the proposed new Constitution has also established other necessary institutions of governance.
These are: (a) the Public Service, and (b) the Independent Electoral Commission (Chapter Thirteen). (iii) In addition, the proposed new Constitution has further established what are called the ‘watchdog institutions’, in order to provide for ‘checks and balances’ within the governance system.
These are: (a) the leadership Ethics Commission, (b) the Commission on Human Rights and Good Governance, (c) the Controller and Auditor- General, and (d) the Control and Prevention of Corruption Commission (Chapter Fifteen). (iv) The proposed new Constitution also has, very significantly, made specific provision for the care, maintenance and utilization of our natural resources, specifically land. (Chapter Three).
It has in addition made provision for the fundamental objectives and directive principles of State policy, and has clearly identified the country’s political objectives and the economic objectives.
(v) The proposed new Constitution has further made provision for the basic human rights and duties of the citizens, and has focused particularly on the political rights of women, by giving them equal representation in the Legislature (Article 129(4), as well as their other fundamental rights (Article 57).
(vi) Most significantly, the proposed new Constitution has corrected three major defects, or shortcomings, of the current Constitution: (a) it has restored the right of independent candidates to participate in all national and local government elections; (b) it has made provision for Presidential election results to be challenged in the courts of law; (c) it has made provision for the Presidential candidate to be declared winner only if he secures more than 50 percent of all the valid votes.
(vii) Quite appropriately too, the proposed new Constitution has entrenched some of its most important provisions, which cannot be amended without the peoples’ approval by referendum (Article 134).