Crafting the desired ‘new katiba’ in President Samia’s reconciliation process: Lessons from previous processes

TODAY’S presentation is a continuation of the discussion which we started last week, on the matter of crafting a new constitution as part of President Samia’s ‘reconciliation’ process, wherein we will focus on our past experience in ‘constitution-making’ relating to the transition to multi-party politics in 1992; in the sincere hope that this information will benefit the team which will be tasked to undertake similar exercise in the current circumstances.

But before proceeding with this topic, I believe it is right and proper that I should start with a protocol matter; which is to express my humble recognition of the great significance of US Vice President Kamala Harris’s visit to Tanzania last week.

Although I developed some remote feelings of ‘regret’, that my decision of choosing to settle far away in Ukerewe, had denied me the rare opportunity of attending and enjoying the glittering Iftar (to which I was invited), that was organized in honour of the visiting Vice President by President Samia Suluhu Hassan at the Da es Salaam State House. But they cannot dampen my acknowledgement of the fact that this unprecedented event demonstrates, beyond reasonable doubt, the magnificent successes achieved by President Samia in her ‘economic diplomacy’ drive; as well as in her efforts in strengthening our bilateral relations with other nations.

But this event rocks my memory back to those very old days, when the diplomatic relations between Tanzania and the United States were at the level of open hostility; which led to the angry recall of Tanzania’s Ambassador to the United States of America by President Julius Nyerere.  But those were the “bad old days” of the cold war, which should best be forgotten. In view of that, President Samia’s success in arranging this high-profile visit, amounts to ‘reconciliation’ in international relations.

Possible lessons from our past experiences in the ‘constitution-making’ process 

The first relevant experience is with regard to the transition from the multi-party system that was inherited at the time of independence, to the ‘one-party’ system in 1965   The second was the transition back to multi-party politics in 1992. In both cases, we followed a well-structured process, which included collecting and coordinating the views of the general public on the matter. But because of editorial space limitations, we are able to discuss only the second experience.

This second transition process started with a meeting of the CCM National Executive Committee (NEC) which was held in February, 1990; whose agenda included “a review of the general state of politics in the world”; (which had been caused by the events which took place in Eastern Europe during 1989; that witnessed the sudden  downfall of nearly all of the hitherto  powerful ruling communist parties in that part of the world; as a result of  strong demands  for the introduction of democracy based on multi-party politics; and for the introduction of a market economy.

Such demands quickly spread to several African countries; which, in some cases, resulted in violence, that led to losses of life.

This is what, basically, motivated the leadership of Tanzania to start giving serious consideration to the matter.   The actual ‘reform process’ formally commenced with the February 1990 meeting of the CCM National Executive Committee referred to above; which issued the following directives: –

(i)  That in view of the global political environment, a change of the political system was inevitable.  (ii)  That a national debate be organized that will involve all stakeholders throughout the country, to discuss the desirability, or otherwise, of this major change being effected.

(iii) That in order to formalize these discussions, the President should appoint a commission to coordinate the people’s expressed opinions, on the question whether the country should remain a one-party state, or should change to the multi-party-political dispensation.

And indeed, President Ali Hassan Mwinyi was quick in taking the necessary action; when, on February 27th, 1991, he appointed the said commission, consisting of an equal number of members from Tanzania Mainland and from Zanzibar, which he placed under the Chairmanship of the then Chief Justice of Tanzania, Mr Justice Francis Nyalali.

In its “Terms of Reference’, among several other directives which were specified, the commission was also directed: “to recommend any amendments which should be made in the Union and Zanzibar constitutions, or in any other law; and  any appropriate modification that should be made in the country’s political culture”.

I had the good luck of being appointed a member of that Commission; which was given one year within which to complete its assignment.

Working hard and with due diligence, we were able to meet that deadline, and submitted our final Report to the President on 17th February, 1992; in which we unanimously recommended that the change to the multi-party system should be made.  The President subsequently presented the said Report to the National Executive Committee for consideration and decision.

I feel compelled to point out one extraordinary feature of our Report, which was in relation to the surprisingly large number of negative responses that we had received from the people interviewed, regarding the fundamental question whether, or not, the country should change to a multi-party-political system. The results were that 80 per cent of the views expressed had said ”NO” to such change; leaving only 20 per cent who were in favour of  that  change.

However, despite this overwhelming rejection of the multi-party-political system, our commission still unanimously recommended that the change should nevertheless be effected.

On the face of it, this would appear to be a deliberate contravention of the well-known democracy principle of “the majority always wins”.    But we had very good and cogent reasons for doing so, which we elaborated in our Report in order to convince the ruling party to accepted that recommendation.

Subsequently, in processing the Commission’s recommendations through the Legislative process, the government did not stop merely at making provisions only for the transition to the multi-party system; but went further and introduced other important provisions which were aimed at removing some of the systemic impediments to democracy; and specifically, the apparent ‘concentration of vast executive powers in the Presidency’; and ‘the marginalisation of women’ in the political process.

Presumably in positive response to our recommendations on that ‘Term of Reference’ which directed us “to consider any modifications that should be made in the country’s political culture”; both these deficiencies were appropriately dealt with.  We had interpreted the word “culture” to include our apparent ‘tradition’ of having an “untouchable” President, (who was vested with immense executive powers, and who could not even be arraigned in court for any offence he might commit while he is in office).

The constitutional Amendments which were made in that respect, addressed these matters; when they introduced the following new provisions:-  (i)  For the impeachment of the President (under the circumstances that were detailed in that provision).                                                                                                                                                                               (ii) For the removal of the President’s power to dissolve Parliament in his absolute discretion.  As a result of this amendment, the President can dissolve Parliament only at the end of its year term, in order to facilitate the preparations for the ensuing general election. Thus he cannot, for example, dissolve Parliament in order to save himself from an impending impeachment!

(iii) For the removal of the President’s power to nominate as many as fifteen MPS. This number was reduced to ten such nominees.  At the same time, the provision for Regional Commissioners (who are appointees of the President) to be ex officio members of Parliament, was similarly removed.

(iv) For the enhancement of women’s participation in the country’s governance; by providing for a specified minimum percentage of ‘specially reserved seats’ for women in Parliament; as well as in the Local Authority Councils.

(v) For empowering Parliament to move a “motion of no confidence” in the Prime Minister, in the circumstances prescribed in that provision.

Such was the great extent to which the constitutional reforms that were introduced; presumably with the aim of giving the country a totally new ‘political look’; after closing the long chapter of the ‘single-party’ political system in our country.

Lessons for the anticipated ‘new constitution’ reformers

In view of the agreement reached to include the making of new constitutional reforms in President Samia’s reconciliation agenda;  I would suggest that  the experiences  gained from the past  similar  exercises, could  serve as a useful ‘guide’ to the team that  will be entrusted with the task of undertaking the anticipated similar exercise; and  in particular, the need to clearly identify the issues that will require consideration. This is what was done both  by the ‘Nyalali Commission’ of 1991, and  the ‘Kisanga commission’ of 1998.

The ‘Kisanga commission’ was appointed by President Benjamin Mkapa, in order to provide an answer to the continuing demands by the Opposition parties for a “new constitution’.

It was in response to these persistent demands, that President Mkapa decided, in 1998, to appoint another “Constitution Review Commission”, headed by Mr. Justice Kisanga as its Chairman.  This commission’s mandate was to collect and coordinate the views and opinions of the people, regarding “what desirable changes should be introduced in the constitution”; that would hopefully satisfy such demands. In carrying out this mandate, the commission framed the specific issues which it deemed would require consideration for reform; and the following were  the issues that were shortlisted for that    purpose:-                                                                                                                                                                               (i) The structure of the Union government ; should it consist of one, or two, or three governments? The commission subsequently reported that 96.25 per  of all the people who responded to this question preferred the “two-government” structure.

(ii) The threshold for winning the Presidency: should it be an absolute majority of more than 50per cent of all the valid votes cast?   The commission’s finding was that 92 per cent of the respondents wanted a simple majority win.

(iii) Should private candidates be allowed to participate in elections?  The finding on this question was that 92.13 per cent wanted the current restriction to remain.

(iv) Should the electoral system be changed to that of Proportional Representation (PR)?

The finding on this question was that 93 per cent were in favour of continuing with the ‘first-past-the-post’ system that is currently in use.

(v) An independent electoral Commission: how should its embers be selected? The finding was that 86.96 per cent preferred a continuation of the present system, whereby the members thereof are appointed by the President.

(vi) Should Ministers continue to be appointed only from among the Members of Parliament? The finding was that 91,60 per cent preferred a continuation of this practice.

Hence, as a result of these findings, no changes were made to the constitution in respect of these matters, thus maintaining the status quo.

The relevant lesson here, is that these findings appear to suggest that the majority of the people are completely satisfied with the present constitution; whereas, in view of the continuing demands for a ‘new constitution’, such impression is most probably false. Awareness of this situation is what is important for the stakeholders;  in order to enable them to plan, and implement, appropriate remedial strategies; which will ensure that the desired objective is  achieved.  For example, by paying attention to the need for enhancing peoples’ understanding of the “role of the constitution in their everyday lives”, because this essential understanding is, sadly, currently lacking.  / 0754767576.                                                                                                                   

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