CONSTITUTION-MAKING
IN TANZANIA:
THE ROLE
OF THE PEOPLE IN THE PROCESS
Prof.
Chris Maina Peter
Faculty of Law,
University of Dar es Salaam,
P.O. Box 35093,
Dar es Salaam,
TANZANIA
August,
2000
CONSTITUTION-MAKING IN TANZANIA:
THE ROLE OF THE
PEOPLE IN THE PROCESS
Outline
I. Introduction: The Constitution
and Constitution-Making
II. Struggle for Independence:
The Role Played by the People through Civil Organisations
III. Independence and Parting
of Company Between the Leaders and the Led
IV. Major Constitutional Changes
in the Country
(a). From Multi-party to One-party
Democracy
(b). The Interim Constitution
of 1965
(c). The Permanent Constitution
of the United Republic of Tanzania of 1977
(d). The 1983 Constitutional
Debate
V. The Nyalali Commission on
One-party or Multi-party
VI. The White Paper: The Work
of the Kisanga Committee
VII. The 13th Amendment
to the Constitution of April, 2000
VIII. Conclusions and Observations
IX. Selected Bibliography
CONSTITUTION-
MAKING PROCESS IN TANZANIA:
THE ROLE OF CIVIL ORGANISATIONS
No
one person has the right to say, “I am the People.”
No Tanzanian has the right to say, “I know what is good
for Tanzania and others must do it.” All Tanzanians
have to make the decisions for Tanzania.
Julius Kambarage
Nyerere
I. Introduction: The Constitution and Constitution-Making
The Constitution of a country is the most important
legal document. It is the supreme law on which all other
laws are based. At times it is referred to as a social
contract between the rulers and the ruled. It is also
the consensus amongst the people themselves. The Constitution
is therefore more than just a document. It embodies
the wishes and aspirations of the country. All the laws,
by-laws, rules and regulations derive their legitimacy
from the Constitution.
Constitutions
take various forms. There are written and unwritten
Constitutions. Great Britain for instance, has no written
Constitution. It is guided by traditions developed over
the years. However, most countries and particularly
those in the developing world have written Constitutions.
Most of these Constitutions have been developed and
shaped by their colonial past. Some were negotiated
with the leaving colonial powers. They were or are compromises
between the interests of the leaving rulers and the
ruled who were taking over power. Yet others are outcomes
of protracted independence struggle – mostly armed.
Some
of these developing countries have gone beyond the so-called
independent Constitution to a more home-grown Constitution.
They have nevertheless retained the tradition of the
former rulers. For instance, Constitutions of most of
the former British colonies will retain the Westminster
tradition with clear separation of powers, independence
of the judiciary and generally existence of checks and
balances. Others have tilted the balance in favour of
a strong executive and a very weak judiciary and a rubber-stamping
legislature.
This
paper examines the role played by the people in the
constitution making process in Tanzania. The work begins
by examining the struggle for independence and the movement
towards the very first constitution of the country –
the Independence Constitution of 1961.
Later on we look at the process of constitution making
after independence. The focal point is the role of the
people in this process. This area covers struggles of
over thirty years. We conclude by a prognoses on what
the future holds for the people of Tanzania in the constitution
making in the country.
II. Struggle for Independence:
The Role Played by the People through Civil Organisations
Tanzania
was formally under the British as a mandate under the
League of Nations and later as a Trustee Territory under
the United Nations.
Its independence Constitution was negotiated with the
former rulers. In these negotiations the departing British
had an upper hand. The nationalists and the people on
the other hand, did not have a clear say in the process
of framing the coming independence Constitution. One
known concession made by the British was to allow the
then Tanganyika to become independent with a Constitution
that did not contain a Bill of Rights.
That was important as far as the nationalists were concerned
as they no longer had a duty to protect the properties
of the subjects of the departing rulers.
During the struggle for independence and particularly
in 1940s and 1950s, there was a very close relationship
between the nationalist leaders and their people organised
in civil organisations which the colonial regime allowed
to exist. It was almost impossible to separate the politicians
and these civic groups.
The
peasants in their co-operative movements and the working
people in their various trade unions provided the nationalist
leaders with a forum through which they could address
the public “legally” without having to go through the
rigours of getting the required permits for meetings
from the authorities. It is on record that even social
organisations of the people such as football clubs like
Young Africans
Sports Club popularly known as Yanga
and Taarab Clubs such as Egyptian
Musical Club in Dar es Salaam were civil groups
which assisted the nationalist movement in its struggle
for the independence of the country.
Therefore, the role of the people during the colonial
period can not be underestimated. They were very effective
in their various organisations. Worth noting, as indicated
above, were the co-operative movement and the trade
unions. This very amicable and supportive relationship
was to change very much at after independence .
III. Independence and Parting of Company
Between the Leaders and the Led
At
independence the very close relationship between the
politicians and the people in their various organisation
came gradually to an end. This was due to the differences
in perception of what the political independence meant
for the people of Tanzania. As for the co-operative
movement things were much easier. The top brass in the
major co-operative societies were co-opted easily into
the new government. In the forefront were the leaders
of co-operative societies from Lake Victoria area. Paul
Bomani from Victoria Federation in Mwanza, a strong
cotton growing zone and George Kahama from Bukoba where
there was a strong coffee growing area and there were
others. This co-option did not mean freedom to co-operative
movement. It is still placed under the tight control
of the government with the Minister responsible for
Agriculture keeping an open eye on their operations.
The problem was the trade unions. There was a sharp
division and divergence of views among the leadership.
Some wanted to join the new government and get into
politics proper. Others wanted to maintain their positions
in the trade unions and continue with the struggle for
the improvement of the welfare of the working people.
Yet others joined the government for a short while and
later left. There were serious repercussions to follow
for the trade union movement in the country.
Therefore, people like Michael Kamaliza and Alfred
Tandau joined the new Government and were given cabinet
posts. Other union leaders like Christopher Kasanga
Tumbo joined the government for a short time and then
left.
For those who insisted on continuing the trade union
tradition of fighting for the rights of workers and
their welfare the government was loosing patience.
Tanganyika Federation of Labour (TFL) was outlawed and
the leadership banished to remote areas of the Country.
One of the top leaders of the movement, Victor Mkello
was deported to the remote town of Sumbawanga.
TFL was replaced by a State-sponsored and supported
National Union of Tanzania Workers (NUTA) which was
affiliated to the ruling Party. For many years to follow,
the Secretary-General of this “trade union” was always
a cabinet minister responsible for labour. That development
marked the end of the struggle between the people in
their organisations one the one hand, and the government
on the other, over the destiny of the country.
Therefore,
for most the post-independence period the civil society,
through which the people were organised and thus could
express themselves was submerged within the ruling party.
This was in the form of what were referred to as mass
organisations of the ruling party. These were of the
youth, the parents, the workers, women and peasants
(co-operatives).
As a result of this co-option by the State, these civil
groups could not contribute meaningfully to the advancement
of the struggle towards a progressive and democratic
country. This applies to the contribution in the betterment
of the Constitution as the main law of the country governing
the relations between people and their government and
among themselves.
IV. Major Constitutional Changes in the
Country
The major constitutional changes that followed after
independence point at one common thing. That is an attempt
to by the ruling party and its government to show to
the rest of the world that there was democracy in the
country and that the people were fully involved in the
constitutional process. That is quite understandable
as even the most autocratic system does not own up to
being autocratic. It would assert that it is democratic.
And to be democratic or to be seen to be democratic
you have to be seen consulting the people. That is what
has been happening in Tanzania. An attempt to indicate
that the party and its government were consulting the
people – while in fact they were not consulting anybody
at all.
To prove our assertion, we look at various ways through
which the constitutional process has taken from independence
to the present. We examine the way from multi-party
to mono-party; consolidation of one-party system to
its supremacy and back to multiparty again. We end with
an examination of the most recent constitutional amendment
– the 13th Amendment of 2000 which followed
the controversial White Paper debate.
(a) From Multi-party to One-party Democracy
Tanzania,
then known as Tanganyika, was a vibrant multi-party
democracy at independence. The Independence Constitution
of 1961 provided a legal and constitutional framework
for that. Apart from the Tanganyika National National
Union (TANU) which was dominant there were two other
political parties. These were the United Tanganyika
Party (UTP) formed in 1958 and backed by the landed
section of white settlers in the country to counter
the influence of TANU; and the African National Congress
(ANC) which was also formed in 1958 by Zuberi Mtemvu
after leaving TANU over disagreements over the position
to be taken at elections.
After independence other new parties emerged. These
include the Peoples Democratic Party
(PDP) of Christopher Kasanga Tumbo; the Peoples
Convention Party (PCP) led by Samson Mshala; the Nationalist
Enterprise Party (NEP) of Hussein Yahaya; All Muslim
Nationalist Union of Tanganyika (AMNUT); and later came
the African Independence Movement (AIM) which was a
merger between PCP and NEP.
In this multiparty democracy there was a clear consensus
that the Parliament was the supreme organ of the people.
This was conceded by the former President of the United
Republic of Tanzania, the late Mwalimu Julius K. Nyerere
in a speech made on 25th April, 1964 to the
National Assembly asking it to ratify the Union between
Tanganyika and Zanzibar. In this speech Mwalimu said:
The Parliament is the supreme
organ of the people of Tanganyika. No important constitutional
issues or important matter concerning state agreement
or concerning the laws of this country, can be finally
decided by anyone or any group of persons other than
this Assembly. All such matters must be brought
before this house, and it is entirely at your discretion
to approve them or reject them. Today, I am submitting
to you for consideration a draft agreement for the Union
of Tanganyika and Zanzibar. (emphasis added)
This was to change very soon. First, other political
parties had to go in order to pave way for a one political
party political system. According to Professor Cranford
Pratt, a Canadian Political Scientist and the first
Principal of the University College at Dar es Salaam:
In
Tanzania the several tiny parties which appeared in
1962 were harassed out of existence, their leadership
deported or detained and their rights to register and
hold meetings severely restricted.
With other parties out of the way, time was ripe
to declare a one-party political system. The argument
for this came from the Party President himself. In a
speech to the TANU National Conference in 1963 he argued:
Where
there is one party, and that party is identified with
the nation as a whole, the foundations of democracy
are firmer than they can ever be where you have two
or more parties, each representing only a section of
the community.
What followed was a decision of the Party’s National
Executive Committee (NEC) to turn Tanganyika into a
one party state. This party decision was to be given
legal backing two years later vide the Interim Constitution
of 1965.
There was no attempt to involve the people in the
decision-making. The party had decided for them. Therefore,
even when the President of the country formed a Commission
on One-Party State he was very clear on their limited
mandate:
In
order to avoid misunderstanding, I think I should emphasise
that it is not the task of this Commission to consider
whether Tanganyika should be a one-party state. The
decision has already been taken. Their task is to
say what kind of one party state we should have in the
context of our own national ethic and in accordance
with the principles I have instructed the Commission
to observe.
(emphasis added)
The next step was to declare the sole party supreme.
Again, the first person to hint at party supremacy was
Mwalimu Nyerere. When conveying fraternal greetings
to the conference of the Uganda Peoples Congress (UPC)
on 7th June, 1968, the President of TANU
argued a case for party supremacy very articulately:
For
the truth is that it is not the party which is the instrument
of the government. It is the government which is the
instrument through which the party tries to implement
the wishes of the people and serve their interests.
Party supremacy was officially entrenched into the
Constitution of the country in 1975.
The party leadership at the same time controlled
the government. This gave them control over both ideological
and coercive state apparatus. It was the same people
making decisions in the party and then overseeing their
implementation in the government. Changing hats took
place depending on the seat – party president or country
president. Already by 1971 the system of checks and
balances between the organs of the State had been completely
dismantled. The parliament and the judiciary had completely
lost the war with the executive. The President was so
confident as to tell the British Broadcasting Corporation
(BBC) in an interview that “I have powers under the
Constitution to be a dictator.”
(b) The Interim Constitution
of 1965
The Interim Constitution of the United Republic of
Tanzania is taken as the third Constitution – following
the Independence and the Republican constitutions of
1961 and 1962 respectively. Its enactment indicates
the new power of the single ruling party and total disregard
of constitutional process. No Constituent Assembly was
ever convened to pass this Constitution. It was adopted
by the parliament in its constituent capacity as if
it was amending an existing constitution.
This Constitution recognised the changes brought
about by the Union and also adopted most of the proposals
made by the One Party Commission. The most significant
being the rejection of a Bill of Rights and placing
of fundamental rights and freedoms in the preamble.
In addition, the Constitution of the ruling party TANU
was also made part of the Constitution of the land by
being appended as a schedule to this Constitution of
the country. It is not clear why the it was decided
to append the Constitution of one party only – TANU
and exclude that of the ASP while in fact the two parties
existed simultaneously in the country.
It is worth noting that in the process of bringing
this new Constitution into operation the people had
been clearly and deliberately by-passed. No attempt
was made to involve them. It was party leaders who were
busy preparing documents and using the state machinery
to see them though the legal processes in order to avoid
criticism. Little effort was taken to ensure the legitimacy
of the new constitution.
This Constitution was interim.
According to the Articles of the Union of Zanzibar and
Tanganyika of 1964, a new permanent Constitution was
supposed to be adopted within one
year after the commencement of the Union.
This time frame was extended almost indefinitely and
the Interim Constitution was to last for twelve years
until the permanent Constitution was eventually adopted
in 1977.
(c).
The Permanent Constitution of the United Republic of
Tanzania of 1977
On 5th February 1977 the two existing
political parties in the country – Tanganyika African
National Union (TANU) and Afro Shirazi Party (ASP) merged
to form Chama
Cha Mapinduzi (CCM). This new party was proclaimed
at Amani Stadium in Zanzibar. This followed approval
by the joint General Congress of TANU and ASP held on
21st January 1977.
What is interesting is the fact that it is the same
committee which had been appointed back in October,
1976 to prepare a constitution for a new party which
was assigned to prepare the new constitution for the
country. On 16th March 1977 the President
of the United Republic of Tanzania appointed this 20-person
committee headed by the late Thabit Kombo to make proposals
for a Constitution for the United Republic.
Strangely, on the same date i.e. 16th
March, 1977 the President appointed and summoned the
Constituent Assembly to discuss and enact the new Constitution
of the United Republic.
According to Professor Issa G. Shivji:
The Commission had started working on the Constitution
even before it was formally appointed as the Constitution
Commission. It submitted its proposals to the National
Executive Committee [of the new Party CCM] which adopted
them in camera in a one day meeting. These proposal
were then published in the form of a Bill and within
seven days submitted to the Constituent Assembly.
The
Constituent Assembly the new Constitution within three
hours.
(emphasis added)
Thus
in the making of this Constitution there was no consultation
or debate. Everything was forced through the throat
by the powerful ruling party. Yet this was the permanent
Constitution of the country.
(d) The 1983 Constitutional
Debate
Notwithstanding
the tight grip of the party over the country and curtailing
of the various rights and freedoms, the members of the
public never gave up their right to contribute to the
welfare of their society. Whenever an opportunity is
offered or offers itself tended to grab and utilise
it to the full.
One such opportunity came with the desire by the
ruling party to effect changes to the Constitution of
the United Republic of Tanzania of 1977 in 1983. There
was a serious debate on the Constitution and the people
almost hijacked it and contributed effectively to this
debate. The ruling party, being supreme under the Constitution,
declared the areas it desired to be changed. These areas
were:
1. The Powers of the President;
2. Consolidation of the Authority
of the Parliament;
3. Strengthening the Representative
Character of the National Assembly;
4. Consolidation of the Union;
and
5.
Consolidation of the Peoples Power.
The debate began slowly with the people, due to the
long suppression under one-party rule, wanting to remain
within the dictates of the party. That is, to restrict
their views only to the areas indicated by the party
as wanting to be looked into. However, as the debate
picked tempo, members of the public began making comments
on the whole Constitution and indicating the various
weaknesses in this supreme document.
Leading in this crusade was the society of advocates
and lawyers in the country, the Tanganyika Law Society
(TLS). This society has a long and chequered history.
Over the years it has evolved from a conservative lawyers’
club to force to reckon with in constitutional issues.
According to Tambila:
Most
NGOs, as part of Tanzanian civil society, kept a very
low profile during the years of demobilisation of civil
society with the notable exceptions of Tanganyika Law
Society, the University of Dar es Salaam Academic Staff
Assembly (UDASA) and CHAKIWATA.
From 1983 the Tanganyika Law Society became very vocal
on issues concerning the Constitution and actually led
the debate on democracy in the late 1980s and early
1990s.
Therefore, whenever the issue of the rights of the
citizens has been placed on the agenda, the society
has been very clear in expressing the views of the majority
of its members. For instance, when the President of
the United Republic of Tanzania appointed the Commission
on One-party State and this commission was going around
the country collecting people’s views, TLS sent a well
considered memorandum to the Commission in which it
indicated that it was necessary to have a Bill of Rights
in the Constitution of the country if that Constitution
is to get respectability from the members of the international
community.
The recommendation was ignored by the Commission but
the point had been made.
The 1983 debate was another opportunity for the Law
Society to make its mark on the Constitutional map of
the country. As the debate progressed, the society organised
a three-day seminar on the Constitution. Among the contributors
to this seminar was Wolfgang Dourado, the former Attorney-General
of Zanzibar, who wrote a paper on the Union between
Tanganyika and Zanzibar and advocating for a three-government
system instead of the current two. During the seminar,
participants openly argued for introduction of a multi-party
democracy in the country and doing away with the one-party
system and party supremacy. It was also insisted that
time has come for the Bill of Rights to be entrenched
into the Constitution of the country. Also, participants
argued that those who did not belong to the sole political
party should be allowed to form their own political
parties or join political parties of their own choice.
The
government of the day was not happy with the issues
raised in the seminar. While closing it, the then Attorney-General
and Minister for Justice Hon. Joseph Warioba indicated
clearly that it was important for the lawyers to adhere
to the guidance given by the party on the areas which
desired changes in the Constitution if they were to
be relevant to the country.
This seminar had two opposite results. One positive
and the other negative. On the negative side, two of
the ideas raised and developed in the course of the
seminar were summarily rejected. These were those on
the introduction of multi-party political system in
the country and re-organisation of the two-government
union to a three-government federation. To add salt
to injury one of the proponents of these ideas, lawyer
Wolfgang Dourado was immediately after the seminar detained
under the notorious Preventive Detention Act, 1962.
He was to spend over a hundred days in custody. This
detention was triggered by what he had said in his paper
at the seminar.
On the positive side, the seminar opened way for the
incorporation of a Bill of Rights into the Constitution
of the United Republic of Tanzania of 1977.
This is because the lawyers at the seminar were able
to articulate and crystallise the wishes of the majority
of the people of Tanzania as expressed in various forums
in a variety of ways. Interestingly, the question of
incorporating a Bill of Rights in the Constitution was
outside the purview of the five issues decreed by the
ruling party as open for debate.
This was a development that raised the morale of
not only the lawyers in the Society, but the members
of the public and in the NGO fraternity. It indicated
that with a spirited and concerted effort, members of
the public could effect change on the Constitution and
other areas of public life that affect them in their
daily life. The important lesson was that everything
had to be fought for inch after inch.
V. The Nyalali Commission on One-party
or Multi-party
The
events in 1983 did not deter those who wanted change
in the Constitution of the country to continue with
their agitation. Whenever an opportunity presented itself,
it was thoroughly utilised. At the end of the 1980s,
the Eastern Block of socialist countries was slowly
disintegrating. It began with the Union of Soviet Socialist
Republics (USSR) which disintegrated into several republics.
Later, the formidable Berlin Wall separating the Federal
Republic of Germany (FRG) and German Democratic Republic
(GDR) fell and thus leading to the re-integration of
Germany into a single country.
These changes are well illustrated by Tambila who
says:
External
influences included … the dramatic changes taking place
in Eastern Europe and the now defunct Soviet Union,
starting with the 1985 accession to power of Mikhail
Gorbachev who initiated change and openness under the
banner of perestoika
and glasnost. The events included the collapse of the Stalinist regimes
in East Germany, Bulgaria and the violent collapse of
the communist regime in Rumania; the changes were epitomised
by the fall of the Berlin Wall and the ignominious deaths
of Nikolae and Yelena Ceaucescu of Rumania.
These and other developments in the world had their
effects on democracy and democratisation in Tanzania.
Thus, in 1991 the then second phase President Ali
Hassan Mwinyi appointed a commission under the Chairmanship
of the then Chief Justice of the United Republic of
Tanzania Hon. Mr. Justice Francis Nyalali to collect
views of the people on what type of political system
they would like. That is whether to remain with the
one-party system or to adopt multi-party political system
and advise the government accordingly.
The Commission was given one year to complete its work.
During the debates introduced by the Commission all
over the country, lawyers again in their society took
almost a central role. The society under the presidency
of advocate Bob Makani organised a very successful conference
at the historical Institute of Finance Management Hall.
Papers on constitutionalism were presented and at the
end of the conference the participants “voted” for a
multi-party political system of government.
This “voting” was not received well in the ruling party
and government with the then Party Secretary-General
Rashid Kawawa saying that the lawyers were on their
way to mislead the people again.
Yet, when the time came to make decisions on the
recommendations of the Nyalali Commission, the government
adopted the multi-party political system.
This is what the Tanganyika Law Society had been advocating
for over the years. A hard struggle had to be waged
for the government to give in to this demand.
VI. The White Paper: The Work of the
Kisanga Committee
For a long time, the members of the public have been
critical of the way the ruling party and its government
have been handling changes in the Constitution of the
country. Since its adoption in 1977, there has been
over thirteen amendments touching on various issues.
Lawyers and pro-democracy movement in the country have
been calling these amendments patches (viraka)
which have not managed to bring about any serious changes.
They have maintained and consolidated the status
quo. This has led to agitation over time for a formulation
of a new Constitution. This is a Constitution which
will take into account the interests of all stakeholders
in the country. That is, people of all works of life
– peasants, workers, students, religious groups, professionals
etc. These interest groups can only be brought together
in a National Conference in which they can jointly write
a completely new social contract to govern the relationship
among themselves and their relationship with their government.
Instead
of addressing the issues being raised, the ruling party
has remained adamant. It has argued and continues to
argue that the current Constitution is both legal and
legitimate and therefore the question of writing of
a new Constitution does not arise.
In order to reduce the mounting pressure, in 1998
the government came up with the bright idea of floating
a White Paper
on the constitutional change. The White Paper is basically
a British method of trying to know the views of the
public on a particular issue of national importance.
The system of White Paper goes hand in hand with what
is called a Green Paper. In the Green Paper the government
of the day raises issues which it desires the public
to discuss and then releases these issues to the public.
On receipt of the reactions from the public, the government
then adds its own views to those of the people and then
comes out with a White Paper. Therefore, essentially
a White Paper contains both the summarised views of
the public and those of the government. In Tanzania,
as usual, the government is fond of copying things half
way. Its version of a White Paper was strange. It contained
both issues and the views of the government on those
issues. The public was expected to add if they have
“any other view.” This was technically pre-emptying
debate on these issues.
A Committee of 16 members was appointed led by a
respectable member of the legal fraternity Hon. Mr.
Justice Robert Kisanga of the Court of Appeal of Tanzania.
The Committee visited all districts of the country and
presented its huge report, which is in four volumes
covering over 800 pages to the President of the United
Republic of Tanzania.
As the report was being presented, the government
made it categorically clear that it will disregard the
recommendations of the Committee where they are in conflict
with the views of the “people.” This was a strange position
because in the past there are precedents of the same
government, where there has been good reasons, adopting
views of past commissions “against” those of the “people.”
The government kept its work, in an unprecedented
fashion, after reading the report for a month and without
releasing it to the public, the President decided to
blast the Kisanga Committee for going beyond its mandate
by making recommendations which were not in conformity
with the views of the people [read here views of the
government]. On his side, the Chairman of the Committee
informed the press that he would not enter into a debate
with the President and that the President was entitled
to his own views and could pick whatever he found useful
in the report. With this the whole momentum built through
the work of the Committee was lost. That meant that
another opportunity to meaningfully better the Constitution
of the country was lost.
Parallel to the Kisanga Committee Tanganyika Law
Society initiated its own programme of seeking people’s
views on the Constitution. It held public meetings in
various parts of the country and people were able to
give their views on what they wanted to see in their
Constitution. The work of the society was completely
ignored by the government. No comment was made of this
valuable task and the legislation that followed including
the 13th Amendment to the Constitution never
referred to the work of TLS.
VII. The 13th Amendment to the Constitution
of April, 2000
True to its word, the government prepared the 13th
Amendment to the Constitution of the United Republic
of Tanzania
on the basis of its own views as indicated in the White
paper. The amendment has in fact taken the country back
instead of advancing its democratic tradition. A lot
of ground gained in the struggle for change for the
better has been lost through this amendment. Illustration
of these changes will drive the point home.
Firstly, before this amendment for a person to be
declared president of the United Republic, such a person
needed more than 50% of votes in the presidential elections.
Now, this has been done away with. A candidate for the
office of the President needs only to win by simple majority to be declared President.
It is alleged that this amendment was meant to avoid
presidential elections re-runs, which are said to be
expensive. However, at what cost? The president is a
symbol of the country and hence should indicate a pan-territorial
acceptability. This is no longer necessary. It thus
means that a single tribe or merger of related ethnic
groups can "sponsor" a presidential candidate
and succeed. The same could be said for a religion.
One of the major religions can identify a presidential
candidate and "work" for his or her success
in the elections. A President by simple majority is a liability rather than a blessing and this is
a negative development in the democratic process in
the country.
Secondly, before this amendment, all Members of Parliament
save for the Attorney General, women in the special
seats and those representing the Zanzibar House of Representatives,
all other members of the House were elected from the
constituencies. The President did not have power to
nominate anybody to Parliament. The 13th
Amendment changes this and takes us back to the one-party
era in which the Parliament was dominated by those who
had entered the House through the back door i.e. through
nomination or holding certain constitutional offices
such as Regional Commissioners etc. This Amendment now
allows the President to nominate up to ten Members of Parliament.
As a justification, we are told that this is meant to
give the President opportunity to appoint some "experts"
to parliament. These are "experts" who are
good but shy away from active competitive politics of
elections.
One may wish to note that the Parliament is a representative
body. All citizens cannot sit together to make laws
and other rules to regulate their affairs. They have
delegated this duty to their representatives in Parliament.
Therefore, one goes to Parliament to represent and not to exercise a certain expertise. Therefore, the
legitimacy of being in Parliament is derived from this
task of representing others. Experts can always be called
to assist the Parliament to clarify complicated issues.
However, they need not belong to the Parliament, as
they represent nobody. If the President is interested
in experts, he can always hire them as permanent secretaries,
presidential advisers etc. These will be normal bureaucrats
doing their duties to the nation. Therefore, the argument
of filling the Parliament with “experts” who enter the
house by the back door has little logic. The net result
is to give the executive arm of the government more
weight so as to enable it to push unpopular decisions
in Parliament with ease. This was the case in the one-party
parliament which had a majority of nominated members.
Therefore, to revert back to nominations is definitely
retrogressive.
One positive element in the 13th Amendment
is the increase of the number of the special seats for
women. The number of MPs in this category will increase
from the current 15% to 20% plus depending on the declaration
by the National Electoral Commission from time to time
after obtaining the consent of the President.
This is a welcome development given the small number
of female MPs in the current Parliament.
VIII. Conclusions and Observations
From what has been covered above, it is obvious that
the people of Tanzania have never been genuinely involved
by the government in the constitution-making process
since independence. There have been half-hearted efforts
involve the people in this process. However, these have
not been genuine. These are attempts aimed at showing
the rest of the world that this is a democratic country
and people are involved in their own governance. However,
when one looks deeper into these efforts it is easy
to discover their hollowness. A clear example is the
whole White Paper process. Here, the government prepared
issues, which in its opinion were important for the
country. Instead of letting the people discuss them,
the same government gave a position on all of them and
then asked the people to add any other comments if they
felt it was necessary. And this was termed a consultation
and involvement of the people in the constitutional
process.
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