Joseph Sinde Warioba cheering on the First President inaugurating a draft constitution.
I have just paid a visit to Tume ya Mabadiliko ya Katiba website and the shock that greeted me was the Rasimu ya Katiba was not there! So this contribution is constrained to what the Chairman of the Commission laid down as a synopsis in the said constitutional draft.
I have always been vocal on the misgivings I nursed on suitability and legitimacy of the constitutional process that was dictated before us by the executive. We know that JK regime never wanted a constitutional re-engineering and under public pressure they caved in a manner that left the regime in total control of the final product. And our bragging opposition led by Chadema also sold us when they agreed to be placated with a couple of eating positions in the Commission.
What are the real problems with this Warioba Commission?
1.0 Unconstitutionality of the whole process!
a) An act of parliament can not topple our constitutional order! (Read Mtikila v. A.G [CAT] decision on private/Independent candidates (supra).
b) Presidential appointments of commissioners were not transparent, competitive and participatory!
c) Legitimacy of the Commission can not be justified on past performance of the appointees!
d) Constitutional re-engineering process wrongfully vested on the institution of the presidency!
e) People participation geared for a window dressing!
2.0 The devil is always in the detail.
a) National values include transparency but it is unclear how constitutional institutions will be formed based on national values.
b) National values should include public participation in formation of government or in the alternative human rights be part of national values. The details on how public servants are appointed is a key matter in addressing the serious problem of poor leadership, endemic official graft, , integrity, nepotism, tribalism, cronyism and religious biases in the appointment of such servants.
c) It is ridiculous that in the 21[SUP]st[/SUP] Century the executive can continue enjoying a leeway of borrowing without seeking a fiat from the Augusta House. Let us stop them now!
d) Since it is a human right for citizens to take part in the building their own nation it makes no sense at all to limit presidential seekers to 40 years and the excuses chosen are based on experiences elsewhere and not from the proposed constitutional provisions on human rights. It is sufficient to state all the rights ushered to a voter ought to be protected to the any office seeker in the public. In other language is if we trust a teenager to vote then there is no reason we should mistrust her from seeking any office she is eligible to vote. It is time to demystify the presidency and not impose qualifications which are unconstitutional for a mere reason of being discriminative based on age and limited to just that office!
e) On rights to question presidential election again the proposed human rights on participation have been infringed. Stakeholders in any election are all Tanzanians. How do we limit electoral challenges only to those office seekers? It is pathetic, to put it mildly.
f) On presidential impeachment, the commission claims where we are is the right spot without answering the basic issues of infringements of the principles of natural justice on a charged president to be subjected to the same accuser playing the role of a witness, a prosecutor and a judge. It is despicable that the commission did not propose a second upper chamber of the House to spare us the injustices created by the existing constitution where the parliament is a judge of its own cause as far as the impeachment of the president. This is considered a grey area because the ccm dominated commissioners never contemplate a day a ccm president will face such a humiliation and this is why it is not given its due thought. If a second chamber is costly given there will be two more chambers to cater for individual governments of Tanganyika and Zanzibar then both of these chambers ought to form part of impeachment process on simple majority vote either to assent or dissent. If one of these lower Houses dissent then the process will be considered aborted in the favour of the sitting president who is under parliamentary investigations.
g) Forcing each constituent to elect opposite sexes is ridiculous. The underlying assumption there is faulty for being parochial and not strategic. It is tantamount to an admission that women will never challenge mens domination in politics and they need constitutional protection which to say the least is an utter degradation of our women! Most women will prefer to fairly compete with men and if they are considered better than men be elected on their own right. My recommendation there is all constituents be offered to all without a gender consideration and women preferential list of not more than a third of all MPS be reserved for election in all constituents. A Kenyan constitutional case is instructive here.
h) MPs be free to answer to their conscience whether to abscond from dictatorial political parties without having to consider that if the initiation is from them then they will have to face voters in an election battle. We elect people not parties and I thought the dictatorship of parties together with their abuses of voters will come to a screeching halt but it seems bad habits die hard too. If a political party can not take away voters' rights by axing the MP then the MP is also ought not to be affected if he parts ways with his former bosses, simple and clear. After all, recalling constitutional clauses of MPs are there to check upon the impunity generated by wayward MPS why then restrict them even more in the hands of political parties?
i) There is a need to include all members of parliament and divisional councilors in sanctions against participating in executive positions or activities and responsibilities earmarked to the executive or judiciary and that will take care of Speaker and her Deputy playing roles in the Committee that recruits members of the electoral commission. How can we call it an independent election commission when it is corrupted by the judiciary through Chief Justice and the Speaker of the House? Are we in April Fools' day or what?
j) Speaking of the electoral commission, we will not judge it in its cover that if you rename it independent commission then it will be independent. We may be dumb but it is foolish to consider us that dumb. Constitutional assurances that local government, national security and the state House will have zero role to play are vital safeguards to ensure the legitimacy and the integrity of the election are above reproach. Active Chief justice and the Speaker or their sidekicks hobnobbing in the formation of the electoral commission taints the integrity of the election. For example the president of the Supreme Court is also the Chief Justice where electoral disputes will be settled as a Court of first and last resort. Some of the complaints may touch upon the competency of the appointees that the Chief justice had taken part in ratifying their appointments which the public may perceive as politically motivated.
Then how can the same Chief Justice be an impartial arbiter in such election disputes?
Another legal limb is constitutionality of separation of powers between the three arms of the government. Part of the legal limbos we find ourselves ensnared in is the lack of clear constitutional imperatives that debar members of one arm of the government from encroaching on the other arm of the government. A serious and committed Constitutional re-engineering commission would have been cognizant of that and deal this enslavement a lasting blow. But not getting the best services from Warioba Commission is no surprise because the formation of this commission was politically motivated to begin with.
k) Will continue after the gaps have been filled by accessing of the whole document.
3.0 Concluding remarks.
In Kiswahili we have a saying which says Ndege njema huonekana tangia asubuhi and here it suffices to conclude that once again the executive has won a day and common mwananchi has been sold out by all political parties. If you are smart trust neither of them.
Of all of the collossal errors of judgment committed by the Warioba Commission is to clothe aliens with constitutional powers to determine the legitimacy and integrity of our elections through the appointments of the independent election commission hiring committee. I have never heard any country that mistrusts its own people to the degree this commission has insulted our collective intelligence.
Ironically, the current constitution recognizes that the sovereingty of this nation is in the hands of the people of Tanzania but a supposedly better constitution abrogates that constitutional power to aliens via a weird hiring committee of the so-called "independent electoral commission" that is corrupted not only by foreigners but also the Speaker and the Chief Justice. Will there be a happy end to the official graft saga? I solemnly doubt that is the objective of this commission.
We have come a long way, but I did not expect a time will come when aliens will be considered a safer bet than common mwananchi. What is the commission fearing begs for at least a rebuttal.