Why constitution review should consider TZ history

  • Col Simbakalia (rtd) shares his thoughts on new constitution debate
  • Opposes three-tier government

HISTORY is the greatest teacher, so they say. This also applies to Mzee Joseph Simbakalia, former senior army officer and government leader, when it comes to constitution writing.

Focusing on the ongoing debate on constitution review, Mzee Simbakalia believes that it is important to reflect on how the constitution evolved during and after independence so as to make an informed decision.

He was speaking to the ‘Daily News’ editorial team during a special interview with him at his residence in Dar es Salaam recently.

“When you say you want a new constitution, here, I may ask what is the real news?” he posed.

Elaborating his point, he said the process should refer to the history and see what had already been there and what was missing before one jump into a conclusion to demand a new constitution.

Flashing back to the 1950s when the first constitution was drafted to serve the territory, he added: “Then it was rewritten when the country was approaching independence and later on another constitution was drafted when the country gained independence, this was actually the new thing.”

Thereafter, the two countries, Tanganyika and Zanzibar united to form a new country, Tanzania and this necessitated the formation of the new constitution, which however, it was an interim constitution while looking at what to change.

But, after uniting the two political parties as one from each side of the union-that promoted the constitution to be written.

“Writing a new constitution means we erase everything and start afresh, unless we say we are improving the current one. I don’t agree with those who want three constitutions namely for Tanganyika, Zanzibar and the Union. This is wrong, this will no longer be the union but just the federation,” he added.

A federation may be defined as a political system in which at least two territorial levels of government share sovereign constitutional authority over their respective division and joint share of law-making powers; differently put, neither the federal government nor the relevant federative entities may unilaterally alter one another’s powers without a process of constitutional amendment in which both levels of government participate.

“The union is a bigger thing than the federation,’ he emphasised.

Elaborating, he noted that he was surprised to hear that some people even took to the street with placards demanding for a new constitution.

“Generally, I urge people to learn proper history of this country so that they do not repeat the previous mistakes. Because failure to do so you may think that you are doing a new thing but in reality it is the same,” he said.

He said it was also necessary for Tanzanians to ask elders over what was there before and what wasn’t.

“We (elders) would tell why a certain thing was not there, so that you would make an informed decision. We cannot let you plunge into the ditch,” he counseled.

The history of the Independence Constitution could be traced back to 1961 when Tanganyika obtained its independence from the British on December 9. In 1962 Tanganyika adopted the Republican Constitution, which operated from 1962 to 1965.

These two were based on the traditional Lancaster style constitutions negotiated at independence by the British upon handover of state powers to newly independent states.

In 1964 Tanzania was born out of the Union between Tanganyika and Zanzibar.

In 1965 Tanzania adopted an Interim Constitution while the country awaited the drafting of a new constitution, after it abolished the multi-party-political system and adopted a one-party state system.

The process took longer than intended and thus the Interim Constitution lasted from 1965 to 1977.

In 1977 the constitution of Tanzania (the Current Constitution) was adopted.

The current Constitution has remained in force to date, with fourteen subsequent amendments.

The recent calls for constitutional change have been prompted by, among other things, the following two factors:

The need to have a constitution based on the wishes of the people so that they live (participatory constitution) and address some union hitches.

Appreciating the need to have a new constitution, the then President Jakaya Kikwete announced during the 2011 New Year address that he would form the Constitution Review Commission (CRC) to coordinate and supervise the constitution making process.

In April 2012, President Kikwete formed the CRC and appointed the former Attorney General and Prime Minister Joseph Warioba as its Chairman and the former Chief Justice Augustino Ramadhani as its Vice-Chairman.

The CRC was expected to complete its task by October 2013 with the goal of having a new constitution by April 2014, at the time when Tanzania would be celebrating its 50th anniversary of the Union.

After gathering the opinions throughout the country on what should be included in the constitution, on 3 June 2013, the CRC unveiled the first draft of the new constitution (the First Draft).

The first draft which reflected many of the issues people raised with the CRC, thereafter made several proportions.

Among others, they included the excessive powers held by the President, demanding that under the current constitution that should be reduced and redistributed to the National Assembly, the establishment of a Supreme Court which would, among other things, vested with the power to hear petitions challenging presidential election results.

That the United Republic should be a federation with three governments: the new government of Tanganyika, the government of Zanzibar and the federal government.

Also, the Union matters should be reduced from the current 22 to 7, the President should not be part of the Parliament and the introduction of a fully independent speaker and deputy speaker as well as allow independent candidates to contest in all positions, from the grassroots level to presidency,

Pursuant to the Constitutional Review Act, of 2011 (the CRA), the CRC published the First Draft in the Government Gazette.

This aimed to have the first draft discussed by the people in the constitutional forum (Barazas). These were attended by representatives elected at the Ward level in Tanzania.

Taking into account peoples’ views and discussions on the first draft and views submitted through the institutional fora, the CRC then produced the second draft of the constitution (the Second Draft), which was presented to the President and the President of Zanzibar on 30 December 2013.

It made some amendments and additions to the first draft and the number of Articles increased from 240 to 271.

The President then published the Second Draft in the Gazette with a statement that it shall be presented to the Constituent Assembly (CA) for enactment of the Proposed Constitution.

On 18 February 2014 the CA, composed of the members appointed by the President, was convened and in March 2014 the chairman of the CRC, Joseph Warioba presented the Second Draft to the CA.

On 8 October 2014 the required majority vote, that is a two-third majority of the total members from Mainland Tanzania as well as Zanzibar, was achieved and the Proposed Constitution was passed by the CA.

During the Fifth-Phase Government the process had stalled and the current President Dr Samia Suluhu Hassan has clearly stated her government’s intention to revive the process.

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