The last constitutional amendment process was messy, polarizing and defeatist, prompting this discussion paper to investigate the reasons behind the undertow. Of much relevance, despite razing billions of Tanzanian shillings, the constitutional amending process was marred by allegations of not being inclusive enough, being elitist, and being divisive.
Union MPs from the then CUF – (Civic United Front), a Pemba-dominated political party, had levelled grave allegations that a constitutional threshold of two-thirds voting from either side of the Union between Tanganyika and Zanzibar was never achieved, rendering the whole constitutional process, an exercise in futility.
From the onset, it became clear that the constitutional process was bedevilled by vested power interests that were hurtling down into a major confrontation. On the one hand, there was a converging vortex of forces that perceived constitutional reforms would unclench their chokehold sway on power, so they were determined to frustrate it.
While there was another linchpin that felt those reforms could usher in a new era of public participation that may launch their political careers, they supported the process.
While the two opposing forces were not seeing eye to eye, each side attempted to hijack and spearhead the process to ensure and secure their final wishes. In this tug of war, reformers lost the first battle when the constitutional amending law was hatched and legislated as an ordinary law, violating the leverage of a two-thirds vote from either side of the Union that CUF believed it was brandishing four aces.
A pittance of 30 MPs can enact common laws, disregarding where they hail in the Union. This became a legal battleground because the constitutional threshold of a two-thirds majority on each side of the Union was ignored even though the constitutional amendment process would affect Union matters!
While the reformers had hoped that such a considerable exercise would require surgical constitutional excisions and incisions, they were perplexed. They were demoralized when they saw the government opting to craft ordinary legislation to empower the constitutional amendment process.
The reformers had pegged their hopes on that threshold of two-thirds on each side of the Union as leverage to drag CCM (Chama Cha Mapinduzi) into a negotiating table where quid pro quo bargaining arrangements would have been sourced.
The rulers of the day would have none of that and wrote ordinary laws to shepherd the constitutional amendment process. From that day, the constitutional amendment process was in the ICU because warring sides had no consensus on how and who should drive the process.
Feelings of being shortchanged led the opposition in Parliament to express their grouses in the public gallery that they had no faith in the process. Clearly, without unanimity on how to guide the process, the opposition felt it was left out, and CCM would roughshod them into a finishing line.
The opposition’s worst fears were confirmed when the first reading of the constitutional amendment draft law in the Parliament showed how alienated they were. In that law, a presidential commission was established that would consult the people across the country and would be assisted by a secretariat to prepare the constitutional proposals.
The opposition was allotted a few slots of about two representatives in the constitutional amendment commission that was later dubbed the Warioba Commission due to the chairperson being the former Premier Joseph Sinde Warioba. Most of the commissioners, being presidential appointees, were presumed to be CCM cadres, rightly or not.
The opposition half-heartedly participated in the process only to reject it later when they saw the final product was worse than the current constitution. We shall later dilate on this.
Apart from the lop-sided composition of the commission, another area that drew the ire of the opposition was the constituency assembly, whose election of her parliamentarians was unclear and alien to the current constitution. In that constitutional amendment law, nothing was mentioned on how candidates would apply and be vetted or whether NEC would manage the elections of those constituency parliamentarians.
Later, it became clear to the opposition mandarins that the election of the parliamentarians in the constituency assembly was made fuzzy for a reason to allow CCM to tamp it to the rim with her zealots. CUF was beaming with confidence that the two-thirds majority threshold in Zanzibar was impossible to achieve.
But when the final tallying of how the voting went, the speaker of the constituency assembly, Samuel Sitta, proclaimed the draft constitution had passed that threshold, leaving CUF alleging that their votes were rigged to support the draft constitution.
Lessons for future constitutional amendment process are that consensus for a total overhaul of the constitution as advocated by “TUNATAKA KATIBA MPYA” pressure groups is impossible to secure given the partisanship and uncompromising stance on both sides of the aisle.
It is more realistic to advocate for piecemeal constitutional reforms amounting to minimum constitutional reforms.
The critical part of the constitutional amendment is overcoming the challenge to do away with illegal representation so that we may end up with a leadership that upholds the electorate’s wishes. Once we have passed that muster, we can dream of a total overhaul of the constitution, paving the way for a just society and at peace with herself.
We shall all be realistic if we fix the NEC and how it manages our elections to ensure future elections reflect and capture the electorate’s will.
At the moment, an overambitious opposition that is not attentive to the realities of the day and devoid of pragmatism is our biggest enemy in remaking our constitution to guarantee the future of all of us without discrimination or persecution of dissent, which threatens freedom of expression and thought the key ingredients to produce better options of governance which we urgently need.
The Warioba constitutional draft is ricocheted for being too elitist as the bulkiness of the chapters detailing the rights and obligations of the executive abundantly demonstrated.
It is also being impugned for overturning the opinions the commission had gathered, which recommended clipping the presidential imperial powers but were left intact or, in certain aspects, strengthened in the draft constitution adopted wholesale by the constituency assembly!
Of equal concern are violations of momentous constitutional principles such as the doctrine of separation of powers. The Warioba draft constitution rambled about them, but in the establishment of the NEC selection committee, the draft packed to the rim chief Justices, civil servants and speakers of Parliaments contradicting the very doctrine of separation of powers that they had espoused to honour in the draft preambles!
Also read A Critical Look at Tanzania’s Election Law Revisions: Is Fair Election a Distant Dream?
