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Reflections on some misnconceived political demands

According to the Oxford English dictionary, the verb “misconceive” is synonymous with the word “misunderstand”, and means “to understand something in the wrong way”.

Some interested sections of our community, have kept repeating the demand for a new Constitution over and over again; the latest occasion being the beginning of this month, when information was circulating in the social media platforms, to the effect that Chama Cha Demokrasia Na Maendeleo (CHADEMA) had held a three–day ‘retreat’ in Zanzibar, to reflect on that party’s performance in last year’s general election, and to make appropriate plans for winning the next election; and further that one of its major resolutions was to “ensure that the goals of having a new Constitution, as well as an independent electoral commission, are achieved before the next general election”.

However, what appears to be absurd, and illogical; is the notion of associating the availability of a new Constitution, with CHADEMA’s guaranteed success in the next general election. And that is precisely why I have described it in the heading of this article, as a misconceived political demand. I will elaborate.

In a different context, I have had the opportunity to present some of this material in this column before; but in the light of CHADEMA’s strange association of a new Constitution with its chances of winning the next general election; I believe this provides sufficient justification for its repeated presentation, specifically for the benefit of our new generation readership.

The meaning, and contents of Constitutions Constitutions are, essentially, primarily concerned with matters relating to the control of political power, and authority. Hence their contents are normally limited to prescribing the conferment, distribution, and the exercise of such powers and authority, among the specified organs of state, namely the Executive, the Legislature, and the Judiciary.

The Constitution is the fundamental law of the land; and its contents normally also include explicit guarantees of the rights and freedoms of the individuals within the relevant State; and of the major principles that will guide the governance of the Sate (or to which it ought to aspire); plus other statements concerning the citizens’ duties and responsibilities.

The existing Constitution of the United Republic of Tanzania also does exactly that. Thus, in the matter of elections, the Constitution actually plays no role whatsoever, in determining which political party will win a given general election. That role is basically confined to the country’s political parties.

And this is easily confirmed by experience from the other countries of the world; where different political parties have won their elections on the basis of their existing Constitutions; without craving for a new Constitution. There must surely be really good or plausible reasons, for demanding a new Constitution, which the proponents of this particular demand should be advancing, in order for their argument to carry sufficient weight.

Winning elections is solely the responsibility of political parties Success in winning a general election, indeed depends on a number of different factors; but the main one is the positive role played by the political party itself, in the relevant election project.

Political parties are the essence of parliamentary democracy; for they are the powerful agents for managing political mobilisation. Thus, success (or lack of it), by any political party at a general election is determined, certainly not by the provisions of country’s Constitution; but by the level of acceptance of the relevant political party, by the electorate of the relevant jurisdiction.

Admittedly, as has world experience shown, the different factors involved in elections, also include the negative possibility of some unlawful election frauds being committed. But when such frauds are committed, they can be easily exposed and remedied, through legal proceedings commenced in the relevant courts of competent jurisdiction.

And, as we have been authoritatively told before by Justice Barnabas Samatta, “the doors to the temple of justice are always open and welcoming to anyone who feels injured by a reach of the law”. But, as everybody surely knows, the procedure for remedying such frauds is not governed by the country’s Constitution, but by a different law, which is known as the Elections Act.

Furthermore, any wise Constitution - makers will definitely not agree to include such unusual provisions (for helping a political party to win elections) in any new Constitution; simply because that is not the role of Constitutions! It is therefore unacceptable behaviour, and indeed totally unethical, for anyone to attempt to beguile our innocent voters into believing that a new Constitution can achieve such a misconceived outcome, of enabling a political party to win a general election!

These facts are equally applicable to CHADEMA’s other expressed demand (which has been supported by some of the other Opposition political parties), for “an independent electoral Commission” before the next general election. Even with regard to this demand, it is my firm submission that the Constitution cannot provide for an “independent” electoral entity, that is to say, one which is completely free from being influenced by other entities.

This is so because, in the first place, the electoral commission is just one entity in the vast array of similar entities in the expansive government interdependent structure. Hence, even for that reason alone, the electoral commission cannot possibly work completely ‘independently’ of the other Government entities. For example this Commission obviously needs money, as well as manpower, for its operations.

And these can only be supplied by the relevant entities of the Government. That ‘dependence’ cannot be avoided, for it is firmly embedded in the Government’s structure and operational procedures. Furthermore, since the electoral commission is also required to operate strictly on the basis of the relevant laws, this requirement also, necessarily, makes that commission dependent on the Legislative arm of the Government, to supply the requisite laws, or amendments to the existing laws, in order to enable it to operate lawfully.

It is therefore equally unacceptable for anyone to attempt to beguile our innocent voters, into believing that an “independent” electoral Commission will enable a given political party to win the next general election! Such falsity is apparently based on a narrow interpretation of the word “independent”, which focuses entirely on the desire that the electoral commission should be free from being influenced by any decisions made by the Government of the day, for fear that such decisions could give unfair advantage to the ruling party.

The wider meaning of an ‘independent electoral Commission’ The proponents of an “independent electoral Commission” obviously appear to be focusing solely on the narrow meaning of the word “independent”, which is that the Commission “should be free from being influenced by decisions made by the Government of the day, for fear that such decisions could give unfair advantage to the ruling party”.

But this type of independence (from influence by the Government of the day) is already provided for in article 74(7) of the present Constitution. No better provision can be made by any new Constitution. But even this type of ‘independence’ is still no guarantee.

It cannot for example, prevent an unpopular government which is fearful of losing a scheduled general election, from cancelling or postponing that dreaded election; on the lame excuse that it has no money to pay for the expenses of that election.

And should that happen, then, no matter how highly “independent” the electoral Commission might be, it will have no choice but to cancel or postpone that election! It is thus quite obvious, that no new Constitution will ever be able to provide for a truly ‘independent electoral Commission’; except, perhaps, by making a purely cosmetic addition of the word “independent” before the words “electoral Commission, which is basically meaningless !

As we have just seen above, the wider meaning of the expression “independent electoral commission” goes far beyond such theatrical cosmetics. Political parties are the only players In the matter of elections, political parties are the sole players, in determining the elections outcomes.

Thus, the only role of the elections laws is to make adequate provision for a level playing field in respect of election competitions between competing political parties. But even this is, certainly, not the role of the country’s Constitution! The role of political parties in elections.

It may perhaps be useful to provide some elaboration on the role of political parties in elections. Political parties are absolutely essential for the proper functioning of our political system, which is commonly known as the “Parliamentary system” of governance, which we willingly inherited from Britain at the time of independence.

It is a system which is securely grounded on the basic principle that “it gives the majority the right to rule”, by further presuming that “this majority can only be established as a result of open electoral competition between political parties, which helps to produce majorities of relatively like-minded members in the Legislature”, and which greatly facilitates the smooth operation of the decision-making processes in the House; a process which is generally recognised as that of ‘decision- making by the majority of the elected representatives of the people’.

And that is precisely where the question of providing a ‘level playing field’ comes in as a very crucial factor in determining the electoral outcomes. And, in this particular respect, our Legislature deserves commendation for having all the time given adequate attention to this matter.

For even during the “oneparty political system’ era, the Legislature enacted laws which made provision for affording “a fair and equal opportunity” to the competing candidates. Thus, upon the return to multi-party politics, all that needed to be done was only to remodel those laws, so as to provide the same “fair and equal opportunity” to the different competing political parties.

But secondly, political parties are the trusted Agents which perform the important functions of “interest articulation” and “interest aggregation”. These are the words used by political scientists to describe the process by which individuals and/or groups make their demands upon the political decision-makers (“interest articulation”); and the function of converting the articulated demands into general policy options by the political decision makers (“interest aggregation”).

These are important functions because, if individuals, or groups within the society do not have open channels through which to express their interests and demands, these will remain unsatisfied, and may easily lead to political disturbances. This function further underlines the essential and positive role of political parties.

Revisiting the new Katiba - making process There is, apparently, no dispute that the uncompleted ‘new Katiba – making process’, should be completed. This process was put in abeyance in October 2014, after the ‘Constituent Assembly’ had approved the draft of the proposed new Constitution. What now remains is only the holding of a referendum, which will give the final, peoples’ approval, to that document.

However, there still appears to be considerable opposition to the said draft; which thus threatens its rejection by the referendum. There are those who feel strongly that its contents are still inadequate, and that the ‘new constitution’ discussions should be commenced de novo, in order to allow for new additions to be made.

And there are others who just don’t see the need for a new Constitution! This could, perhaps, be the reason why the decision makers are seemingly giving very low priority to this project.

piomsekwa@gmail.com /0754767576

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Author: Pius Msekwa

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