The Constitution of Tanzania: Victim or Villain of a Peoples' Underdevelopment [Draft]
The call for a new constitution is not new in Tanzania’s politics. In 2005, a CCM MP for Wawi wrote a letter to President Kikwete demanding for review of the constitution1. However, as a political campaign issue the call for a new constitution featured most in the civic elections that were concluded on 31st October 2010. Delivery of a new constitution was one of the major election promises of opposition parties specifically the Chama cha Maendeleo na Demokrasia (CHADEMA) and the Civic United Front (CUF). Despite defeat in the presidential elections, opposition parties, specifically CHADEMA has sustained the ‘call ‘and has promised to mobilize and rally citizen support to demand for a new constitutional order. Similar calls have been made by lawyers, politicians and ordinary people and organizations in Tanzania including the Tanzania Law Society2. At the same time, the party in Government the Chama Cha Mapinduzi opposes the call for a new constitutional order in Tanzania1.This short article provides a critical assessment of the 2 opposing views while highlighting some of development challenges facing Tanzania and how the different sections of the current constitution are making it difficult for Tanzania to move forward in terms of human development and social justice.
Justification for a new constitutional order
In the eyes of Chadema and perhaps many other non-partisan Tanzanians supporting the call for a new constitutional order, the current constitution is outdated and has become a fetter to Tanzania’s development. This view sees a causal relationship between the development ills of Tanzania and the current constitution. In this view, the major development ills that have plagued the country including s corruption, impunity, misuse/mismanagement of public resources, inequality, growing gap between the rich and the poor; poor and unresponsive/caring; poverty and under development are a result of the current constitution.
First, the current constitution is blamed for promoting impunity which is associated with growing corruption and unethical conduct among Tanzania’s political class. This impunity emanates from arts. 34 (1), (3), (4); 35 (1), (2) and 36(1) which create an imperial presidency who can be questioned or called to account on bad decisions including appointment of corrupt, unethical and incompetent ministers, permanent secretaries and other senior public and political officers. Although Art. 36 (1) shows that the presidency authority to promote, remove, dismiss, and discipline political and public officers is shared with service commissions and other authorities, this power sharing is limited to the extent that the President controls those other centres of power through appointments of their heads/chairs. These sections have created an imperial president whose powers have been exercised not so much in the interest of peoples development needs, but rather to contain dissidents and promote patronage in its various ramifications. A constitution that has bestowed the presidency with an unchecked powers has bred ground for abuse of such powers by the presidency and his/her delegatees. Many examples are abound; Art. 55 (1) gives the president powers to appoint all ministers who are members of cabinet in consultation with the Prime Minister3, this unchecked powers have been used by successive Presidents to create a huge and blotted cabinet to reward party loyalists at the expense of economic, social and political development. Again, some presidential delegate have abused offices to give employment and unjustified remunerations to cronies with impunity. Recent claims by sections of media that former Minister of the then Ministry of Infrastructure Mr. Andrew Chenge ( a delegatee of the presidency) used his authority to flaw procedures and appoint Mr. Ephraim Mrema as the CEO of TANROADS illustrate the point4. Thus, the current constitution has created tyrants among presidential appointees who can only be questioned and or removed by the presidency/president. This has instilled fear and despair among citizens and also the public service. Peoples rights including access to employment and quality public services have been and still are being trampled on by presidential appointees without questioning. The excessive and unquestioned powers of the presidency, have been exercised to promote impunity, patronage, nepotism, tribalism, favouritism on the basis of one’s religion (udini) and one’s political affiliation (usiasa) in the allocation of public resources, employment and other opportunities. These malaise which were unheard of in Tanzania and were checked against under art. 9 (c), (g), (h) (i) and (j) of the current constitution are becoming a common feature and if perpetrators are not checked they may plunge the country into violence as it has happened in the neighbouring countries. Even where presidential appointees have been forced to resign on allegation of corruption and misconduct etc, they have gotten away with it because of both the persistent culture of impunity characterizing present day Tanzania and protection from the presidency/president who is the appointing and disappointing authority.
Second, by centralizing power in the presidency, the current constitution undermines the principle of separation of powers which is fundamental for a democratic, accountable and responsive government. In present day Tanzania, the President exercises powers directly and indirectly over the two other arms of the state, the judiciary and the legislature. Through the appointment of Judges (Chief Judge, Principal Judge) , the presidency exercises power over the judiciary. This curtails the independence of the Judiciary and is associated with the failure of the judiciary in dispensing justice where the interest of the president and the presidency is at risk. Moreover, the president/presidency who has unchecked powers in his political party, controls the parliament through the party whip and party decision making processes. This undermines the oversight role of parliament. Although Art. 46A (1) bestows the National Assembly with power to impeach the president, these powers are undermined by the fact the speaker of the National Assembly who needs to facilitate the process including establishment of Special Committee of Inquiry and the Chief Justice who has to chair the committee of inquiry are all appointed through processes that are highly influenced by the presidency and the president. For instance, the Chief Justice is appointed by the President this can mar its impartiality when it comes to decisions with adverse effects on the presidency and the president. Quite often, the president has used party decision making processes to discipline otherwise errant and critical members of parliament. Through party decision making processes, the president who chairs the Central Committee (CC) of the party influences nominations for various positions in the party including that of the speaker of the national assembly. This explains why under the current constitution it is difficult for the parliament to check the powers of the executive. Experience shows that the president has used its power of appointment to weaken the National Assembly thus undermining its oversight role. For instance, the appointment by the president of Members of Parliament to Governing Boards of Public Institution. This has turned the parliament into both an implementer and an overseer. This has hindered the effectiveness of the parliament in providing an impartial and objective oversight on the executive.
Through executive appointments, the presidency controls all other processes and institutions that are necessary for democratic development, accountable and responsive government. This includes, Anti corruption body; service commissions including judicial service commission Art.109(1); electoral commission-Art.74(1); attorney general-Art.59(1); controller and auditor general, chief justice and Judge of High Court5, prime minister, cabinet members to mention but a few. For instance, through appointment of the Chair and Vice Chair of the electoral commission the presidency undermines the role of this pivotal institution in promoting free, impartial and fair elections. For instance the inclusion of district executive officers (these are sections of the presidency/executive) as returning officers of the national electoral commission mars their impartiality and independence. In some election petitions, executive directors of local government authorities who are Presidential appointees have been associated with malpractices (uchakachuaji wa kura) including mismanagement of elections. Through control of appointment and removal of Chair and Vice Chair of the Electoral Commission, the Presidency is able to influence commissions work on Art.74 (6) regarding reviewing and demarcating electoral boundaries with specific interest to reward loyalists and punish dissidents.
Third, the current constitution deny citizens as individuals or collectives the right to seek legal justice where gross abuse of public office and authority have been carried out by sitting and retired presidents. Article 46 (2) immunizes the presidency/president from criminal and civil proceedings after tenure of office. This makes the Presidency/president above the law and unaccountable thus violating the very principle of equality before the law espoused by this very constitution.. In addition, the constitution denies citizens to seek legal remedy where the election of this imperial president is considered dubious and undemocratic. This is specifically for on Art. 47 (7) which state that - no court of law shall have any power to inquire into the election of that candidate once the Electoral Commission is declared the President to have been duly elected in accordance with provisions of the current constitution.
Fourth, the process for making and review of the constitution, the structure, content of the current constitution and drafting style need to be looked into to ensure it meets the needs of present day Tanzania. The current cnstitution, outlines the manner and process to be followed in the review of the current constitution. Regarding process, Chris Peter Maina ably puts that the processes have been very exclusionary and elitist. The process as of now, is such that the debate for constitutional review and or amendment is initiated by the executive and legislated by the parliament. The executive may choose to uappoint and use Constitution Review Commissions to review constitutions or canvass public opinion for the same. This means the current process, treats constitution reform as a business as usual event for the attention of the executive and legislature6. Given the presidency/presidents influence over the two other arms of the state, it will be undemocratic to let any of the 3 arms of the state facilitate national dialogue on the constitution. Individuals and institutions on the executive/presidency, judiciary and parliament have so muchinterest to protect in the current constitution. As such, we need an independent constitution review body. Evidence from Kenya, suggest that an independent constitution review body (comprising people with no affiliations to politics of the day) is better able to produce a peoples’ and progressive constitution than those processes that are controlled/influenced by the presidency/executive/legislature. The realiazation of a progressive constitution has been achieved after a long battle of defining a more inclusive and people driven constitution changing process. This involved enactment of a Constitution Review Law specifying the process and manner by which the citizens and the state will relate in the formulation of the new law. The supreme law review legislation placed on the people (through a referendum) rather than the parliament the power to ratify the constitution.
Opposition to the call for a new constitution
CCM, the party in government in Tanzania is opposed to the call for a new constitution. The ruling party believes that with the major transformations that the country has undergone over the five decades since independence, there is little need for a new constitution. The general feeling is that the current laws are enough to cater for the needs of Tanzanians7. Even where some elements within CCM-government acknowledge the need for national debate on the constitutional changes, the exercise has been considered costly for a country which has so many other nation building challenges to confront8. In CCM-governments’ view, there is no direct relationship between the development ills currently faced by Tanzania and the current constitution. In this regard, the attack on the new constitution and the demand for its overhaul is not justified and in some cases it is perceived to be used by political villains as a scapegoat to promote partisan interests. Apart from CCM-government, some prominent members of CCM, while admitting that there are weaknesses in some sections of the current constitution, they do not see a need for a radical and or overhaul of current constitution but rather suggests for incremental changes , that is, amendments as need arises9.Some sections within CCM and its government will continue to oppose the call for rewriting the current constitution because they are benefiting out of the current system. A change of the constitution means; calling on all those who have plunged the country into corruption, inequality, poverty and indebtedness to account for their deeds to the citizens of Tanzania. As such, a new and progressive constitution will be fought from all corners by all those who are afraid of losing their grip to power. There are progressive elements within CCM and its government who may want to see changes but are afraid of retribution.
Points of divergence and convergence
The two opposing views are in agreement on the need for review of the current constitution of Tanzania. However, the main point of departure between the 2 opposing views is whether to go for amendments on those offending sections of the current constitution or to overhaul it and re-write a new constitution. In my view this is a misplacement of the discussion. The decision on whether to overhaul or amend the current constitution should be informed by a broad and comprehensive people driven constitution reform. The national dialogue should be on both the content of the new constitution, the structure as well as the process to guide that journey.
Does Tanzania need to overhaul its current constitution?
Having reviewed the two opposing views, it is very clear that the current constitution of Tanzania is the main cause of the current state of underdevelopment of the people of Tanzania. Impunity and corruption which have contributed to creating socio-economic and political inequality in Tanzania are bred and promoted by the current constitution. Poverty in Tanzania is bred and maintained through corruption. Public resources lost through corruption have Tanzanians access to basic services including education, health and water. Corrupt leaders are protected by their appointing authority as well as a system which is controlled by an imperial presidency. The country needs to rewrite and or overhaul its constitution if it is to achieve its socio economic and political development objectives outlined in Vision 2025 and its implementation plan MKUKUTA. The problems of impunity and corruption experienced by Tanzania are the same problems that pushed Kenya to rewrite its constitution. Here below we present more than 11 points justifying a need for rewriting the constitution in Tanzania.
First; there is a need for a people driven and people development promoting constitution in Tanzania. The current constitution was a negotiated agreement between colonialists and independence leaders with minimal involvement of the people10. Consequent amendments were made to reflect the views of the ruling elites and hence limited broad participation of citizens11. At the time of independence, majority of Tanzanians were uneducated and ignorant on the issue of constitution and constituanalism12. The gains made through expanded access to academic and civic education and awareness on the links between constitution and peoples development makes it necessary to broaden the debate on the constitutional review process, the content and the structure of the new constitution. With regard to the struture, we note that the structure of the current constitution is exclusionary as it is drafted in a way that ordinary Tanzanian cannot comprehend and understand the contents. The legal jargon and terminology that characterise the current constitution was adopted by the colonialists and the political elite after independence to deliberately mystify the constitution and hence exclude the majority of the people from taking interest on it. Tanzania needs a new constitution that people can relate with easily. In their criticism of the old constitution of Kenya, Yash Ghai and Jill Cottrell Ghai note that the previous constitution of Kenya relied much more on the legal terminology and jargon relevant to lawyers and judges13. They commend the drafting style of the new constitution of Kenya specifically for drafting it in a way that it can be easily understood by the people.
Second, there is a need for a new constitution to re-define the relationship between the rulers and ruled. A constitution is a social contract between the rulers and the ruled on how they will relate with one another. While at independence our leaders negotiated with colonialists on our behalf, the time is ripe now for us to negotiate with our rulers on how we want to relate with them.
Third, there is a need for a constitution that addresses the fundamental causes of underdevelopment in Tanzania including corruption, impunity, political class pursuing self interest and preservation, lack of accountability on the part of the presidency, public service, political class, the private sector and civil society organizations.
Fourth, Tanzania needs a constitution that not only defines the roles of the institutions of the state but also underlines fundamental values and principles to guide the relationship between citizens and rulers, as well as citizens and other citizens. Fifth, the country needs a constitution that compels the leadership to uphold it and also provides for citizen to institute sanctions where the constitution has been violated. Sixth, the bill of rights needs to be expanded to include an unlimted power by citiziens to enforce fundamental civil, political and economic rights including the right of access to information. This is a critical right that will ensure transparency in conduct of government businesses. Seventh, there is also a need to provide mechanisms to deter bad leaders and their conspirators from assuming public offices. This can be achieved through provision of criteria for vetting and appointing public officers beyond what is provided under the public office ethics law (s). Eigth, political and all other rights of disadvantaged groups including women, people with disability and those who have been discriminated against through bad leadership practices of today need to be restored and protected. Natural resources including land, forestry and minerals need to be protected and punitive measures need to be included in the new constitution to ensure those who have put our natural resources and environment at risk are punished. A special provision should be made to ensure all those who have invaded and grabbed public land and or property are forced to return the properties. Tanzania needs a constitution that enshrines all key principles of a democratic, accountable and responsive government including separation of powers between the three arms of the state; dispersion of power to the people; taking service delivery closer to the people; limiting powers of the presidency by creating accountability bodies such as the anti-corruption, ethics, controller and auditor general, judiciary that are independent from the presidency; enforcing rights to health, food, housing, education as well as access t resources. Although the political class has consistently denied the existence of tribalism and nepotism in Tanzania, these are some of the challenges that the new constitution should strive to address and or prevent their manifestation. The new constitution should ensure fair go to all Tanzanians irrespective of their religion, tribe, socio-economic and physical status (disability) and or other factors. Mechanisms should be included to ensure fair representation of all Tanzanians/tribes in all elected bodies as well as employment in the public service.
Eleventh, Tanzania needs a constitution that is formulated through a participatory process, guided by a constitution review law, implemented through an independent body that is exonerated from the control of the omnipotent presidency. An independent constitutional review process outside the Government system- individuals with no affiliation to any of the political parties appointed to spearhead the review process is needed to ensure inclusiveness of the process and limit control of the process by the parliament or any one profession. There is need for a participatory and fair process for appointment of members of the constitution review body. It will be undemocratic to bestow the constitution rewriting process in the hands of the current parliament because of its lack of impartiality. The undue control of the parliament by the presidency/president may undermine its independence and may lead into a constitution that protects the status quo. The current parliament is a beneficiary of the spoils of the system and hence may find it hard to pass a constitution that takes away most of the privileges enjoyed by it. Twelve, Tanzania needs a constitution that will address historical injustices such as grabbing of public property including land; public houses/properties/assets sold to individuals at a throw away price; wealth accumulated through corruption involving channelling of public resources to private coffers/benefits; discrimination on the basis ideological/political differences; political play field levelled with all properties hitherto to owned by a single political party and thereafter transferred to CCM returned to treasury; all confidential files on individuals categorised as dangerous to peace and security of Tanzania released and let those individuals be informed and allowed to seek redress.