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New constitution: National consensus is critical

For, if the stature of Nelson Mandela is to be taken as a textbook for the rest in Africa when he went out of his way to talk to people who had languished him in prison to start with and once in power, brought closer some elements in the South African opposition who had chosen to peddle in a different direction, the stance here at home by one of our opposition parties to seek an audience with the president and the reciprocal positive stance by the president to receive them could as well translate as a watershed for this country that opposition is not after all enmity.

This stance could as well become a good starting point for the future of our country, away from turmoil, which has characterized other countries elsewhere in Africa.  The questions to address, however, are: What is the issue in the political process of this country? Are we talking of putting in place a New Constitution or are we talking about reviewing the current Constitution of the United Republic as promulgated in 1977?

For us to be together and reach a national consensus, it is extremely vital to be clear on what is being sought here in this country. Once this is made clear and the earlier this is affected by powers that be in this country the better; it will remove all the misunderstandings and ambiguities that seem to have surfaced thus far.

Those following the political scene in this country, may have heard the Head of State say invariably in more than one occasion that the gear the country is poised is on the writing of a New Constitution for this country.   If this is the case, did the bureaucrats in government, advisors and what have you been on the same wavelength with the president? If they had been, what then could have been the proper wordage in preparing a parliamentary bill to usher in such landmark legislation?

Even for a layman, there is a substantial difference, isn’t there, between a draft legislation that reads a ‘Constitutional Assembly Bill 2011’ and the one that simply seeks to review the current Constitution vis a vis the 'Constitutional Review Bill 2011?' The latter is what was presented in Parliament recently.

On reflection on what transpired then after, such as the walkout by one of the major opposition parties which chose not to take part in the parliamentary debate altogether, it is easy to understand why some circles in the opposition were suspicious of the Bill as not focused enough on the agenda at hand:

That is having in place a ‘new’ Constitution. Although major elements in the Bill, a bill of which has since been assented by the president speak of enacting an Assembly for the Writing of the Constitution and a Presidential Commission to mobilize public opinion, the mere fact that there is ambiguity in the current Bill may have been a major factor by some sections of public opinion that political goodwill is lacking on the need for a new Constitution.

This factor is compounded by another salient feature in the current permanent Constitution of the country as enacted  in 1977, which bestows unlimited powers on the presidency of this country without checks and balances. Such powers are so huge that the founder President of this country, Dr Julius Nyerere, once quipped: ‘With this level of Constitution in place, I could easily make a dictator if I chose to…’

So given this factor, it is easy to appreciate the stance of a section of the opposition that even where there would  be a commission to mobilize public opinion, it may be difficult to distance the views of that commission from those of the president of the day and vice versa, since the commission would be named by the president of the day. Last weekend, on my weekly TV Show – Je, Tutafika?/Shall We Make It, I had, on the carpet, a constitutional expert, one Dr Sengondo Mvungi.

He explained that much as the present day permanent Constitution (1977) does not give room for a new Constitution, Article 98 of the same Constitution gives a technical leeway, which could have afforded the Parliamentary Draftsman to come up with a Bill for the writing of a New Constitution. “With this bill in place giving way for an assembly to write a new Constitution, it would have been very beneficial for this President to oversee the birth of a new constitution, worked out of a national consensus, away from any suspicious what so ever.

That would have eventually awarded our President an everlasting legacy in the eyes of the people of this country,” he added.  One would tend to agree with Dr Mvungi. It needs no emphasis that a Constitution anywhere is about the life a given nation,  taking into account their present and future generations. A constitution is never about partisan affairs or the interest of certain power groups.

It is therefore extremely important that a Constitution is born out of a national consensus. In the same way the President has gone out of his way to listen to a certain group of the polity, he should be available to all groups and listen to them. At the end of the day level headedness would prevail in the national good and national interest.

The best way forward would be to move to elect a Constitutional Assembly, which will bring together people from all walks of life and the civil society. These people thus elected to this body will represent us in the writing of the New Constitution that will stand the test of time projecting the interests of the present and future generations.

E-mail: makwaia@makwaia.com

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Author: MAKWAIA WA KUHENGA

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