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Constitutional review: Why the president is unavoidable

Discussion in 'Jukwaa la Siasa' started by Mwanjelwa, Nov 26, 2011.

  1. M

    Mwanjelwa JF-Expert Member

    Nov 26, 2011
    Joined: Jul 29, 2007
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    [FONT=ArialMT, sans-serif]Sources:Home

    Can lawyers, independently, enlighthen us on this? As it is now, the Constitution issue appears rather complicated as most people don't understand the 'yes' and 'no' of it.

    There was one particular point which had to be made by President Jakaya Kikwete in a public intervention over the boycotting of[/FONT] [FONT=ArialMT, sans-serif]parliamentary debate on the legislation to form a constitutional consultation process last week. [/FONT]
    [FONT=ArialMT, sans-serif]The point was that it is impossible to sideline the president in the constitutional review process, either in constituting such a commission or in its terms of reference, as demanded by opposition parties and a myriad of civic groups. When this singular point is grasped, the rest becomes easier to manage.[/FONT]
    [FONT=ArialMT, sans-serif]While it is one thing to try to explain the rationale of the specific procedure demanded by the parliamentary opposition and its civic[/FONT] [FONT=ArialMT, sans-serif]allies, the proper issue is really to explain why they thought that the president can stand aside. [/FONT]
    [FONT=ArialMT, sans-serif]The first difficulty with that view is that it believes it would be a good thing for the president to step aside for a technical committee of sorts to take charge of each and every aspect of the process, reporting only to MPs. The other idea is that on this basis the blueprint that comes up would be the best possible.[/FONT]
    [FONT=ArialMT, sans-serif]Debunking these two key parameters of the opposition-cum-civic demand is essential for the logic of the dispute to be clear, at two levels, first whether there is a technically sound consultation process suggested by the civic groups (opposition melts into them). [/FONT]
    [FONT=ArialMT, sans-serif]Were it that the process they put up and only taken to the floor of Parliament by opposition law spokesman Tundu Lissu was sound, it would imply that at the level of technique per se, the president is not important. [/FONT]
    [FONT=ArialMT, sans-serif]The second supposition is that agreement is easier to reach that way among various shades of opinion in the task of collecting views than at present.[/FONT]
    [FONT=ArialMT, sans-serif]From whatever angle one examines that argument it is seen to be false, namely that there is no way one can constitute a commission with terms of reference by singular authority of Parliament. The sort of insistence that MP Lissu made in that regard was astonishing, for it betrayed the faulty thinking of civic groups with their truncated class analysis, that the people (these days they call them the ‘99%’) stand on one side, and the ruling party (its top leadership) at another side. [/FONT]
    [FONT=ArialMT, sans-serif]In that case opposition and civic groups hilariously and gaily (not the sexual being gay but happiness) represent the vast[/FONT][FONT=ArialMT, sans-serif]majority, the people.[/FONT]
    [FONT=ArialMT, sans-serif]It doesn’t take much to realize that Parliament as such, without the president, can’t be the source of terms of reference of the[/FONT]
    [FONT=ArialMT, sans-serif]commission, as Parliament has no leader outside the president. Again, advocate Lissu forgets that nothing can become law unless signed by the president, and it is unclear where the party he represents obtained the popular will to sideline the president in this particular act, that he is sidelined and then signs the bill that sidelines him into law. It may in that case have to be signed by the Speaker of Parliament.[/FONT]
    [FONT=ArialMT, sans-serif]The legal aspect done with – that nothing about that bill or the ideal process envisaged by civic and opposition groups can be law unless the president is convinced that what they want is the right thing, which means he is involved. [/FONT]
    [FONT=ArialMT, sans-serif]There is no issue of sidelining him and by some miracle, or prayers bring about a constitutional format or blueprint that he would find likeable enough to sign, for once such a document has been constituted in a process that is publicly recognized as legitimate, it would tie up even the president. It is as if he okayed the process at the start, then it is concluded and then denounces the result.[/FONT]
    [FONT=ArialMT, sans-serif]This was in part the situation that came up in 1998 when some sort of constitutional review process was engaged chaired by Justice Robert Kisanga, and President Benjamin Mkapa rejected its findings or recommendations. [/FONT]
    [FONT=ArialMT, sans-serif]This time the matter is different, as the stated intention is to write a new constitution, not whether we need a new constitution, and what comes out of the process is supposed to be promulgated as basic law, not put to the president to decide whether he is for it or not. Changing the pact could incite disorder.[/FONT]
    [FONT=ArialMT, sans-serif]It can thus be said to be rather naïve politically speaking, for advocate Lissu and fellow civic campaigners to believe that there was[/FONT] [FONT=ArialMT, sans-serif]a legal case for a constitutional rewriting task that starts with Parliament and ends with it. Under such a format the president would[/FONT] [FONT=ArialMT, sans-serif]be given the final act to sign into law, when everything is said and done, that is, a ‘people-centred’ constitution-making process. [/FONT]
    [FONT=ArialMT, sans-serif]In previous years or months it was elaborately set out how the Kenyan model would work, large public meetings taking down views, etc.[/FONT]
    [FONT=ArialMT, sans-serif]One reason why the Kenyan situation animated the Tanzanian context and then led to mixing the two legal set ups is that indulgence makes civic groups here fail to notice the regularity of election violence in Kenya in a systematic manner from1992 to 2007. [/FONT]
    [FONT=ArialMT, sans-serif]By contrast, electoral miscarriage was the order of the day in Zanzibar and the President of the United Republic finally resolved the matter amicably, so quietly that no one seems to appreciate that it wasn’t the Zanzibar political parties which settled the issue but the Union President. Could Isles political warfare have been settled by a ‘new constitution’?[/FONT]
    [FONT=ArialMT, sans-serif]The manner in which civic groups have handled the problem of terms of reference and nomination of the task force (commission) shows that they did not grasp or take into account remarks made by law icon Issa G. Shivji, the first time that an ice-breaking Hill platform on the constitution came up early this year. [/FONT]
    [FONT=ArialMT, sans-serif]The veteran activist said that ideas of seeking party political hegemony (making greater inroads into state power) via a new constitution or a constitutional blueprint and campaign to that effect were misdirected. He said that a constitution is something that will have to be accepted by all groups in society.[/FONT]
    [FONT=ArialMT, sans-serif]Advocate Lissu and other activists are so far removed from reality that they want to start a constitutional review or rewriting process[/FONT] [FONT=ArialMT, sans-serif]that excludes in principle not some social group but, of all individuals, the president. [/FONT]
    [FONT=ArialMT, sans-serif]They are suggesting that a valid constitutional review process is one centered on the people (that is, activists and opposition parties, and their civic allies in religious fraternities) and not on the president. They fail to realize that outside the ‘presidential glue’ there is nothing like ‘civil society’ that one can talk of – just a lot of disparate groups each with its own interest, and incapable of any agreement.[/FONT]
    [FONT=ArialMT, sans-serif]Put differently, there is no issue here of a contrast between two methods of constituting a constitutional review task force or[/FONT]
    [FONT=ArialMT, sans-serif]commission, one that is centred on the people and another favored by the top echelons of CCM, letting the president direct the show. The fact of the matter is that there is realism and non-realism, or daylight moonwalk as to how any edict of state is determined and promulgated. Civic groups and oppositions seem to believe that Tanzanians are united because of their language, places of domicile and perhaps their levels of income. Not at all; only when there is a ruler accepted by all is there a country.[/FONT]
    [FONT=ArialMT, sans-serif]To emphasize, let it be known that there is nothing like ‘Tanzania’ when the president is not part of it, as without this specific level[/FONT] [FONT=ArialMT, sans-serif]of the social contract, about what person the country has entrusted the destiny of the country at present, for a determined period, no political ensemble, concrete institutions, exist. Mwalimu made a reference to this reality in a slightly different context, talking[/FONT] [FONT=ArialMT, sans-serif]about ‘the sin of discrimination’ that one discovers that there isnothing solid called ‘Zanzibaris,’ nothing at all, but Ungujans and[/FONT] [FONT=ArialMT, sans-serif]Pembans, and then ‘Zanzibaris’ and ‘Zanzibaras,’ and thus the state collapses. The point is that if one rejects state authority, it isn’t[/FONT]
    [FONT=ArialMT, sans-serif]an issue of getting a text, constitution, but rebuilding the very sense of state, where all the disparate groups in society can obey one[/FONT] [FONT=ArialMT, sans-serif]law again.[/FONT]
    [FONT=ArialMT, sans-serif]Definitely it is evident that advocate Lissu and his colleagues take national cohesion for granted, so they go to great lengths to look for some political advantage in how the task force is constituted, pretending to be extremely keen about democracy, whereas they only seek to reverse 2010 general election results through the back door.[/FONT]
    [FONT=ArialMT, sans-serif]And there are clear fears about the matter because a constitutional breakdown is also the breakdown of the state, which activists are pondering as the only way out, because they failed in the 2010 polls and the state is pursuing public-private partnership, instead of capitalizing public firms. All these are demands they want in the new constitution, to enshrine Ujamaa, the total renunciation of privatization, and a leadership drawn from this sentiment, to rule.[/FONT]
    [FONT=ArialMT, sans-serif]What is surprising is that this demand is catching up like wildfire not only during the situation where euro zone member states whose economies have large public sectors like ours are collapsing, but also locally, government fiscal commitments are in question. [/FONT]
    [FONT=ArialMT, sans-serif]The clamour about an independent constitutional commission is that it should come up with a document tailored to formalize into law the demands of Tahrir Square protesters, or those in Occupy Wall Street demonstrations, and locally, university groups lately booing JK when addressing hundreds of visitors from all over the world to mark 50 years of the start of the University College of Dar es Salaam mid 1961after Madaraka. JK represents not one among the best products of the Hill to the booing students, but just another oppressor.[/FONT]
  2. T

    Thesi JF-Expert Member

    Nov 26, 2011
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    Dont try to confuse us. Presidency is just an institution. It is not true that nothing holds without presidency. Constitution can be worked out without president. We want a constitutional bill that will not give power for any institution being it executive, political parties, activists or religious groups to own the process for their selfish reasons. We dont want presidential constitutional commision but a constitutional commission that will constitute all groups including the president. In the current imperial president constitution president is the centre of everything. That is a mistake that we never want to repeat in the new consitution. President has to be a member of the constitutional making
    process, not the owner as they want to make
    it now.
    So don come here with your evil and cheap political sidelining trying to convince us.
    Tundu Lisu was 100% right as well as civil activists.
    what you wrote is completely crap.
  3. N

    Nyamanoro JF-Expert Member

    Nov 26, 2011
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