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| Retired Premier Judge Joseph Warioba pondering at a point on the constitutional debate |
Recent events within and without parliament provide enough indicators that political parties and their affiliated non-governmental organizations are trying to capture the constitutional making process in order to produce a constitution in the image of the society they want.
The issue of who constitutes what commissions and or what body at a given stage of the process has become a thorny issue. From other quarters some political actors and political activists are threatening to boycott the 2015 General Election unless and until the New Constitution is in place.
In the philosophy of the political constitution, there is no single, identifiable moment of constitution-making. This is more so because in politics disagreement will never cease and changing circumstances will likely affects peoples reasoned opinion. Thus constitution making should be seen as an on-going process.
When Tanzania opted for review of the constitution, it was entering unchartered territory. Though the idea of capturing and dominating the constitution making process would seem plausible, no political force or movement would countenance an attempt.
Initially it started with the early attempt to constitute the Constitutional Review Commission. The claim of the opposition was that the President should not be solely responsible for selection and appointing Members of the Commission. Opposition parties identify with Non-governmental and Civil Society Organizations as struggle groups. Thus their inclusion in constitutional review bodies would boost the chances of opposition parties to influence constitutional making.
The opposition objected to the presidential selection of members of the Constitution Review Commission because they feared that the President as the chairman of the ruling party CCM would not be impartial. In the end the President selected prominent personalities, whom the public accepted as a group of prominent persons from the list proposed by Civil Society and Professional organizations, which would do the job the nation wanted be done meticulously.
This time around the same old problem has surfaced. It is concern with the proposal about who constitutes the Constituent Assembly. Again the opposition is seeing it differently. That those in the political society should not dominate the Constituent Assembly, Instead, Civil Society should provide more than half of the Members of the Constituent Assembly.
The question to pose is which is Civil Society? What is the ideology of Civil Society and to what extent is it separated from the state and the influence of foreign ideology and external political forces, notably the donor community?
It seems to me that it is early to celebrate that this country is on the right path of constitutional making and the creation of a new political order. We need to reflect on what some political developments portend and unravel the mystery.
The unmaking of the constitution in Tanzania evolves not only through political interventions by political forces from the ruling coalition and from the opposition movement. The proxy wars and compromises in the Constitutional Review Commission, parliament and the activities of the fragmented Civil Society and media, present the real basis of unmaking of the constitution.
The Tanzania government and the Constitutional Review Commission are gunning for the written constitution ignoring the unwritten part of the constitution which operates on the political and legal normative principle which forms the other fundamental part of the Constitution. People have values and norms which guide them in their political life, activity and community relations.
Thus in the public and private domains, everything that happens is constitutional. The written part of the constitution is got to do with conflict settlement on political management issues which fail to establish non-conflictual conventions which operate on the basis of unwritten code.
Britain, Israel and New Zealand do not have a single document called, “the Nation’s constitution”. But they are no less democratic that us in Tanzania.
The prominence given to written constitution is the mistaken belief that a real constitution is the written constitution. What they would be “founding fathers” of the people-centred constitution forget is that the written constitution seem to be affixed, end-point, as against a political constitution much of which is unwritten and governs the daily activity of political actors and ordinary people who carry on their daily activities which in essence are constitutional.
For more than 25 years since the launching of political reforms in 1992, the proposition to write a new constitution for Tanzania was a frozen idea.
The new political forces and Civil Society entertained the idea of capturing power from the ruling party as the priority peaceful way to struggle against the authoritarianism.
The claim for fundamental review of the constitution, that worthwhile attempt had always hit the wall, as CCM has always coasted to victory in the proceeding general elections of 1995, 2000, 2005 and 2010.
The necessity and need of making the new constitution was not an inevitability that had to be attended to with urgency.
It was only when opposition parties, especially CHADEMA changed tactics and opted for extra-parliamentary struggle under the aegis of Peoples Power Movement symbolized by the Arab Spring Movement that the President of the United Republic of Tanzania read the writings on the wall and agreed to the proposal of reviewing of the existing constitution and eventually the re-writing of the new constitution.
Moving swiftly, the President staked his claim to the making of the new constitution by appointing a constitutional Review Commission under the Chairmanship of the distinguished former Attorney General and Prime Minister of the United Republic of Tanzania and Chairman of the U.N. Law of the Sea Commission.
The Constitution Review Commission includes politicians and diplomats the likes of Dr. Salim Ahmed Salim and Joseph Butiku, former aides to Mwalimu Nyerere. Others include former radical academicians professor Baregu, Kabudi and Dr. Mvungi who are now committed neo-liberal political marketers. Former Chief Justice Augustino Ramadhani, Ally Saleh and Mary Kashonda complete the list of the legal cluster.
The legal and political clusters are well represented in the commission to undertake experiments on certain political and legal principles beyond the ground reality. They have given us the constitution draft which bears and carries what was informally and formally said and done but not subjected to serious analysis for their workability and manageability.
This is the group of eminent person who have taken the responsibility of gathering, reviewing and documenting views from the masses of people throughout the country and have produced the first draft of the new constitution, which has, however raised more questions and controversies.
The most controversial issues is concerned with the structure of the Union From Zanzibar, the claim is that the new constitution should provide authority to Zanzibar to assume its supposedly lost sovereign status when it joined the Union with Tanganyika in 1964.
Zanzibar political elites think that only Zanzibar joined the union. In determining the future of the Union, Zanzibar has all the initiatives in its hands, while Tanganyika as a silent partner has to be woken up and be liberated. It is contended that the rejectionist position can do a favour to those who calamour for the rebirth of Tanganyika.
They invoke the position of Zanzibar which they claim that, that part of the union has changed its constitution to reflect her sovereign status, something which Tanganyika should emulate. The same people had earlier disclaimed the move of Zanzibar unilaterally changing the constitution without regard to violation of the Union constitution.
It should be noted that rights and principles when applied to specific situation divide people rather than unifying them. That is why in forming larger political communities like unions, federations and regional integration countries opt for limited sovereignty by conceding sovereign rights and obligations.
In twenty years time, when the “new constitution” should have stood the test of time, the status of founding fathers of this country will be blurred.
The demand by Members of Constitutional Review Commission to be included in the constituent Assembly presupposes that they want themselves not the judge of the courts of law to give a proper and appropriate interpretation of the provisions of the draft constitution.
What a fallacy! I would rather have Members of the Constitutional Review Commission serve as consultants of the constituent Assembly than being fully fledged Members. They already have a political position which they want to defend.
The new constitution is not meant to compliment the struggle for independence that the Nationalist movement organized as anti-colonial movement but a break from the gallant history against colonial rule.
What we are witnessing today is putting faith in the written constitution as the beginning of an end to constitution-making, without understanding that the constitution has two dimensions: the political constitution (the unwritten part) and the legal constitution (the written part).
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