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The following Government paper No. I of 1998 is intended to allow the citizens of

1.1 The people of a country are the foundation of any nation’s sovereignty. Government desires its legitimacy from the people; besides, involvement of the people in decision making is one of the most important pillars in the process towards time democracy and it is a constitutional right.

1 .2 In Tanzania, we have a history and culture of involving the people in various matters which include Constitutional matters. The issue of Tanganyika’s becoming a Republic was proceeded by the collection of people’s views. In implementing the Legislature Resolution for Tanganyika to become a Republic, the Government published a special document White Paper. The aim of that Paper was to get general views regarding the new Constitution of the Republic of Tanganyika.

1.3 Upon receiving and reviewing the various views contributed by the people, Government introduced a Bill in Parliament for the new constitution of the Republic of Tanganyika.

1.4 When Tanganyika attained independence on December 9,1961, its Constitution recognised a plural political system. The same was for Zanzibar although the decision to have a single party system was made in 1963 after the Presidential Commission was formed to gather views from the people on the manner of implementing that decision single party system.

1.5 The multi-party system in Zanzibar was abolished in 1964 during the revolutionary struggles.

1.6 Since its formation, the ruling Chama Cha Mapinduzi C.C.M (Revolutionary party) has been in the forefront in paving way for better democracy. It is for this season that genuine efforts have been put into involving the people in such a vital Constitutional debate. It should be recalled that in 1984 other important amendments were made to the Constitution to expand democracy. Some of the important amendments were made to the Constitution to expand democracy. Some of the important amendments affected them include the restricting of Presidency to only two 5 year terms, the inclusion of the Bill of rights for the very first time in the Constitution. Those amendments had been proceeded by a Constitutional debate whereby nearly all citizens whether C.C.M or non-C.C.M members were able to express their views.

1.7 The introduction of a plural political system is also another recent example of peoples involvement in Constitutional matters. The introduction of multipartism had been preceded a wide Constitutional debate in which the people were able to express their opinions suggestions and proposals the Presidential Commission known as the NYALALI COMMISSION which was appointed on February 27 1991. One of the Terms of Reference to that Commission was "to recommend the way of expanding Democracy in the country type of political party system notwithstanding".

The Commission submitted its recommendation to Government early 1992. Among its many recommendations which the government under its ruling CCM party accepted was the recommendation to introduce a multi-party political system inspite of an 80% of the entire nations indication that they preferred a single party system. This is because Government believes that this was an opportunity time for political competition. The Government values and appreciates the great confidence the people have shown into the 0CM party since the introduction of multiparty system. It is that confidence that has enabled a successful transition from single party to a plural party system.

1.8 Upon the 0CM Government’s decision to accept the introduction of a multi-party democracy on July 11992 Tanzania became a multiparty democracy, a system that had been abolished in 1965. The decision to follow a multi-party system was effected through the ₈th Amendment to Constitution of the United Republic of 1992 which officially declared "The United Republic a being a Socialist democratic state under a multi-party political system" In implementing this official declaration, the Constitution had to be amended to repeal all the article that outsted multipartism or were to the effect that OCM had Monopoly i.e. Chama Kushika hatamu. Currently there is not any article in the Constitution that refers to 0CM only or favours any one political party. Subsequent to the Constitutional amendments, a law was enacted for the introduction and registration of new political parties and amendments of Electoral laws were effected by parliament to enable the new political parties to take part in elections.

1.9 13 Political parties were registered and became operational thereafter further pursuant election was held in 1994 and the several Parliamentary and Presidential election were held in 1995 which were all under the Multi-party system as provided for under the Constitution. In addition, there has to be 9 by-elections for Parliamentary seats since 1992. Three of those were held before the general election of 1995.

1.10 From experience in the by-election before 1995 and consultations between our two governments, the Constitution was amended for the third time between 1994 and 1995. Some of those amendments include putting the following in place:

(a) A system whereby a presidential candidate would have a running mate and both would have to be voted for.

(d) Parliament shall have the power to check the President, Vice President, Speaker and Deputy Speaker.

(e) Restriction on the army, judges, members, employees and officers of the Electoral Commission in political activities. Further the electoral law was amended to ensure free and fair election under a multi-party political system. The amendment made in the Electoral law were amendments concerning equal access to the public media and above all the decision to count votes at the polling station before all candidates, agents to ensure transparency in vote counting.

21. Despite the enactment of the Political Parties Registration law and the amendments to the Constitution and the Electoral law, there are still demands for the enactment of a new Constitution. Some of the reasons given for such demands are as follows:-

(a) That whenever there were major political changes a new Constitution was written. Such major political change include:

(i) Tanganyika’s attainment of independence decree in 1961 — The New Constitution of Tanganyika

(ii) Tanganyika’s becoming a Republic in 1962. The Constitution of the Republic of Tanganyika.

(iii) Upon the Union of Tanganyika and Zanzibar in 1964 there was the Interim Constitution of the United Republic.

(iv) When a Single party political system was established in 1965 there was established in 1965 there was the Interim Constitution of the United Republic and eventually there was enacted the 1977 Constitution.

Logically it is construed therefore that the establishment a multiparty political system was a major political and historical event that necessitates a new Constitution.

(b) The existing Constitution is not legitimate because people were not involved in its making.

(c) The existing Constitution is based on a one party system was enacted under a one party system, was enacted under a one party system and therefore is only adequate for that system.

The existing Constitution has too many lacunae and thus there is need for making a new Constitution that will be adequately comprehensive.

2.2 Demands for new Constitution are also linked to the 40 laws which theNyalali Commission recommended be stuck off the statute books.

3.0 Governments Views on Demand For a New Constitution

3.1 Claims for a new Constitution on the grounds of a major political change introduction of multipartism do not take into consideration the fact that the first 2 Constitutions as well as the interim constitution on 1965 were not based on major happenings but rather change of sovereignty as follows:

(a) The independence constitution of 1961 was enacted to transfer power from a colonial government to the people of Tanganyika. The Constitution did not however transfer all the power for the Queen of England continued to be the Head of State. Any country which is headed by a monarchy is not a Republic.

(b) A republic country is one which is headed by a President. That is why a decision was made immediately after independence to have Tanganyika became a Republic under a President so that it would not continue being under the British monarchy that therefore entailed enacting a new Republic Constitution of 1962 by the Tanganyika parliament to complete the process of transfer of power from a colonial monarchy to Tanganyika people’s government under a President who is the head of state, and Commander’s in chief. The parliament which enacted that new constitution had been constituted as the Constituent assembly.

(c) In 1964 when Tanganyika and Zanzibar united, no new constitution was enacted. Instead, it was agreed upon that the union arrangement set up in the articles of union would become the Constitutional order. In addition, those articles put in place a system to follow in the enactment of a new permanent Constitution. In 1965, the Tanganyika Constitution was amended to accommodate the union structure, and introduce a single political party system. That is what came to be called the interim constitution which lasted up to 1977. Therefore, even in 1965 there was no enactment of a new constitution.

(d) The 1977 Constitution was enacted to complete the union agreement of 1964. It was necessary to make the new constitution then for purpose of merging sovereignties for the enactment of a new constitution a year after the union in 1965. The implementation of that provision was postponed by an act of parliament Act No. 18/65.

3.2 It is obvious thus that by this historical sequence of events, the claims that for every major constitutional event there was a new constitution enacted are not true. The truth is that there has been only 3 constitution so far enacted. A new constitution was made only when there was change of sovereignty.

That happened:-

a) When Tanganyika attained independence

b) When Tanganyika became a Republic and

c) When the Republic of Tanganyika united with the Republic of the People of Zanzibar

Hence, the permanent constitution of 1977 was a result of the sequence of historical and constitutional events which led to the transformation of state sovereignty as explained in this article.

3.3 The claim that the present Constitution is not legitimate do not take the union or its implementation into consideration. The union agreement comprises article of union and acts of union. Articles of Union the of the Union Agreement were signed on April 26, 1964 by the then President of both countries on behalf of their peoples.

The second part of the Union Agreement, Acts of Union are the two caucus which were enacted to rectify the Union Agreement. One was enacted by the Tanganyika parliament and the other by the Zanzibar revolutionary council. Those laws are found in Chapter 557 of the laws of Tanganyika. As such, the Union Agreement was confirmed and rectified by the Tanganyika Parliament and revolutionary council of Zanzibar which were then the representative bodies of both Peoples.

3.4 The Union Agreement provided for the enactment of a permanent Constitution and to that effect established a Commission to gather Constitution views and opinions and prepare recommendations and eventually called for a Constitution Assembly with representatives from both sides of the Union for the purpose of making a Constitution. In implementing those provisions of the Union Agreement the President took into account both peoples representation by appointing representatives from both the Zanzibar Revolutionary Council and the Tanganyika Parliament to the Constitutional Commission. Evidence to that effect is found in the Government Gazette of March 25 1977 (G.N. 38 and 39 of 1977).

3.5 The claims based on the Nyalali Commission Recommendation that a new Constitution be promulgated over look the basis of this recommendation whereby it was recommended to restructure the union in order to have a federation of three governments. Therefore the recommendation for a new Constitution is based on the recommendation for a federal Union. But since that primary recommendation was rejected, there was no need any more for a new Constitution.

3.6 Claims that the present Constitution is for a one party system ignore the fact that this Constitution is based on the 1964 Union Agreement during which the multiparty system was still in place. Furthermore the claims ignore the fact that this current Constitution embeds all the Constitutional principles which are the basis of true democracy such as:-

a) Separation of power among the executive parliament and the judiciary

b) Independence of the judiciary

c) Supremacy of Parliament to enact laws

d) Ministerial and government accountability

e) Human Rights

f) Participation of the people in decision making through local governments

g) Periodical election of local government representatives, members of parliament and the President.

3.7 Further, the claims that this constitution should be repealed as it is patched with amendments are baseless. There is not any single Constitution in any country in the World which is not amended and even it does not mean that a new Constitution will never ever be amended. A Constitution is alive document which must be amended to suit the requirements at the time and should exhibit life in itself. Academically a Constitution and laws remain legitimate inspite of the amendments. Therefore such amendments are not patches.

3.8 Article 98 of the Constitution provides for the amendment of the Constitution by Parliament. That provision upholds the importance of the Constitution as the basic law that is why it makes it hare to amend it whether on Union Clauses or otherwise if such a provision is not respected them the nation will be making a foundation for disregard for the constitution. With that explanation, the government will continue to amend it in accordance with the Constitutional Provisions.

3.9 As explained earlier on, since 1992 when multiparty democracy was introduced there has been a Constitutional debate which has been going on at different levels and in various social strategies. The government thus has been closely following that debate and now it is time to officially decide on various issues arising from the debate. The aim of this government paper therefore is to explain in summary the most important aspect recommended by government together with reasons for that so that the citizens may get the opportunity to consider them and air their views which will enable government to send to Parliament popular recommendations to effect the apparent necessary changes to the Constitution.

PART THREE

4.0 Salient Features in the Debate

The various issues which arise therefore require political decision and concern the running of political affairs. Other issues are both political and legal in nature and so will require political decisions and legal implementation. These issues are such as:-

a) The present structure of the Union of two governments require restructuring.

b) Reduction of the excessive Presidential powers.

c) Review of the Presidential Election system

d) Changing the current Parliamentary representation by:

i) Allowing independent candidates to vie

ii) Introducing proportion representation

ii) Enabling the electorate in constituency to recall their non-performing Parliamentary representatives.

iv) Improving the current electoral funding to case the financial strain on the aspirants.

v) Introducing seats for nominated parliamentary representatives.

e) Reviewing the adequacy of the appointment of the Electoral Commission

f) Ministerial appointments

g) Civil servants participation in political affairs activities.

h) Participation in political activities by Regional and District Commissioners

i) Whether it is appropriate to have the words "Socialism" and "Socialism and "Self Reliance" the Constitution of the United Republic.

5.0 Government Views and Assessment

(a) The Union Structure

First Point

That there should be a tripartite Federation of the government’s of Tanganyika, Zanzibar and the Union government. Those who hold this view are those who question the legitimacy of the Union because the citizens were not involved in the signing of the Union Agreement. Also there are views which want the continuance of a 2 government Union i.e. the Union government and the Revolutionary government of Zanzibar as recognised in the union agreement. Furthermore there is another view, which favour only one union government.

Governments Views

5.1 The United Republic of Tanzania was born from the Agreement of 2 Sovereign states i.e. the Republic of Tanganyika and the Peoples

Republic of Zanzibar. According to article

(i) Of the Union Article, these 2 sovereign states agreed that:-

"The Republic of Tanganyika and the People’s Republic of Zanzibar shall be united into one sovereign Republic" Therefore, the basis of the Union agreement was to unite the 2 states into one state which is a Republic. Even then the articles of the union provided that the two governments continue to exist until a permanent constitution was enacted and that is the Union government which would take charge of the union matters and the other, the government of Zanzibar with full responsibility over Zanzibar non-union affairs so to avoid the feeling that one government was usurping the other, during the 1977 constitution making, that structure was upheld.

5.2 Regarding the view on a triparty federal Union, it should be remembered that that was also considered at the inception of the Union Agreement in 1964. However that did not seem appropriate due to the would be experience running of that kind of Union which to a considerable extent would have been shouldered by Tanganyika. Other reasons are geographical differences in between the two union members in resources and population. Those differences still exist. Currently we already have a 2 government union. Government’s view is that the 2 government union shall continue to exist. However, government still welcomes people’s views on this matter.

Second Point

That the Union Agreement was arrived at by the top leader of the 2 countries without consulting the citizens thus there is need to revisit the legitimacy of the Union by way of a referendum.

Government Views

5.3 As already explained in article 3.3 of this Paper, that view ignores the fact that the Union Agreement was entered into by the 2 leaders on behalf of their Peoples and that the Agreement was tabled in the Tanganyika Parliament and in the Tanganyika Parliament and in the Zanzibar Revolutionary Council which were the Peoples Representative bodies the leaders who made the agreement were legitimate leaders with full legal authority to do so and International Communities including the United Nations already recognised the United Republic of Tanzania. Here is no basis for retreat Governments view on this is that there no need for a referendum to legitimacy the Union which exists. Even the Government welcomes views on this.

5.4 A referendum is one way of obtaining peoples views but not the only one in the world. In our country’s historical context this method has never been used although there are many major decisions which have made and got accepted by the people. We have system through which people can air views. The issue of having or not having a union has never arisen. The Union of Tanganyika and Zanzibar was hailed by the people and is still supported. Moreover, the claimed for a referendum on the Union contradicts the fact that many federations would wide including those of U.S.A, U.K and Canada, Australia, India, Malaysia, Nigeria etc were not by way of referenda but more a result of decision made by their legitimate political leaders. And this is the case with our union.

5.5 It is a fact that certain problems arose in implementing union matters. But in any federation/union problems of governance do exist. The problems of implementation in manifestation now do not arise from the type of federation, and those who make such claims have never been able to prove that the type of federation we have has been of no benefit at all to the peoples. The government believes that the Union of Tanganyika and Zanzibar is very successful. Both governments are keen to and will continue to resolve the existing problems. If resolved it the people who will benefit more.

5.6 Further, there are have been suggestions that one of the ways to eliminate the problems of implementing the Union is to arrange for concurrent list which each of the two governments. This suggestion is impracticable in union of 2 governments without giving it the character of an absolute tripitate federation. This is not acceptable to the government.

(b) Presidential Powers

Third Point

That the Presidential powers are too many especially the powers to appoint

offices and their office bearers within government and its institution.

Governments Views

6.1 There are two types of Presidency functional in various countries.

Firstly there is executive Presidency. In countries where such type is the modus operandi, the President becomes the Head of State, the Chief Executive and Commander in Chief.

Secondly, in countries which follow a non-executive Presidency, the President is merely a Head of State. Tanzania on its port, follows a Parliamentary system democracy whereby government, meaning a cabinet of ministers is appointed from within parliament and is accountable to Parliament. Under this form the head of government has powers to appoint Principal government Officials and their officers without need for approval from another State organisation.

In countries such as the USA which follow Presidential system government is appointed from outside the legislature and for that matter the cabinet and any other presidential appointments must be sanctioned and confirmed by the senate. If a senate or House of Representatives is appointed as Minister (Secretary) he is duty bound to resign his previous senate seat or as house representative. This system was once experimental in Nigeria and Liberia without success. Since becoming a republic Tanzania has pursued a Parliamentary system democracy under executive Presidency whereby all governmental authority and powers are exercised either by the President himself or he delegates such powers to other people in authority in the civil service.

Taking into account the fact that the President under a parliamentary democracy is himself answerable to the people in matters of government operations there is need for him/her to have total executive powers to appoint his assistants and implementations in his government. For this reason government is of the view that the President should continue with such powers to appoint government leaders. Even then government concedes that the number of presidential appointments can be reduced to have a small list of leaders and principal officials for direct residential appointment into government.

Powers of Presidential appointments concern persons/bearers whose offices are created either by Constitution or by law. The remaining civil servants should be either employed, appointed or promoted by other organs of civil/public service in a manner which is transparent.

Nevertheless, government welcomes further views from the public on this matter.

Fourth Point

That the Presidential powers of declaring a state of emergency and detention without trial be struck off.

Governments Views

6.2 The rationale behind the law of state of emergency and the law of detention without trial is to preserve the general national security and the security of the citizens and their property. The Presidential powers in the implementation of those laws are based on that rationale and the reason why such powers are entrusted in the President is because he is the Chief executive. Furthermore, since the Constitution and other laws set out limits to the Presidential powers and mechanisms to check abuse thereof government is of the view that the Presidential powers should be upheld to enable the President to effectively run the country and control and deeds harmful to the national security, or be able to deal with national or environmental disasters which affect community or a section of community in our country.

Presidential Election

Fifth Point

That the requirement of a Presidential Candidate to win at least 50% of all the votes in an election to win is inappropriate in this multi party system where there may be more than 1 candidate.

Governments Views

7.1 This requirement was more appropriate under a single party system where there was only one Presidential candidate. To substantiate his acceptability among the bigger section of the population it was mandatory for the candidate to win more than 50% of the votes. In a multiparty system where there can be more that one candidate, this requirement is inappropriate. In government’s opinion a candidate for the Presidency of the United Republic Tanzania should be one who defeats all the other by a simple majority rather than the current requirement of 50% of all the votes. This would be a new arrangement will also remove the need for a runoff election which is also too burdensome for the taxpayers. Even the government welcomes the views of the people on this matter.

Sixth Point

That people should be allowed to challenge the Presidential election results in the High court or that such results should be confirmed by the High Court before officially publishing them.

Government’s Views

7.2 Taking into accounts the fact that the Presidential Election determines the 5 year terms of the Presidency, establishing the system of challenging the Presidential Election in the High Court or confirmation of such results by the High Court will prolong the previous presidency which is terminating. Further that system could plunge the nation into an uncertain period of tension. Even the system of using others sitting public officials e.g. Speaker who may execute Presidential duties is inappropriate as he might hold the office in acting capacity for too long while he is an unelected leader. Thus government opens that the current system which does not permit government challenge to the presidential election results nor High courts confirmation of the results be upheld.

Form of Representation

Seventh Point

That there is need to introduce independent candidacy for the Presidential, Parliamentary and local government elections i.e. without owing allegiance or being a nominee of any political party. Reasons given are that, failure to introduce this system to denies intending contestants their Constitutional rights to participate in the nations political affairs and is also a violation of international conventions on Human Rights concerning the right to choose especially the International Convention on Civil and Political Rights (ICCPR).

Government Views

8.1 Introducing independent candidature within the current political environment is not wise. The aim of the current system is to ensure development of many feasible, stable political parties both in structure and policy which in turn help them to complete in any election and ultimately get a chance to form government. The multiparty system aims at political party competition and not individual competition. Further introducing independent candidature may cause indiscipline within the parties. Any Tanzanian who intends to vie independently for leadership should either join a political party or form his own.

8.2 Government believes that this decision does not violate international convention on civil and political rights as it does not bar imposition of conditions to facilitate enjoyment of such rights. Secondly the claim that millions of people are denied right to participate in the political affairs for lack of the system of independent candidacy is merely, a historical theory. The truth is that a majority of Tanzanians vote rather voted into office. Moreover many Tanzanians who wish to vie for council seats do so through the parties without any feeling of being restrained or bothered by requirement of party nomination. For all these reasons, government is of the view that all candidates should continue to contest through party tickets. Even then government welcomes peoples views on this matter.

Eight Point

That there is need of introduction of proportional representation. The basis for this claim is that the current system of getting a Parliamentary seat is by the system of first past the post. There is a possibility that proportional representation will not truly represent the proportion of the electorate that votes a party loses many parliamentary seats by a very narrow majority, that party will actually have many followers but without any Parliamentary representation.

Government Views

8.3 The democratic parliamentary representation consists of 3 main categories:

a) Members directly elected to represent constituencies on the basis of first past the post;

b) Members elected on the basis of the proportion of votes scored by their parties as statutorily provided for;

c) Members belonging to both a) and b) i.e. a certain number who elected by majority of votes in their constituencies and those elected on the basis of the proportion of votes.

8.4 The demerits cited in respect of constituent parliament are of two kinds. Firstly, they claim that this does not reflect the true number or proportion of votes got by any party country wide e.g. if there is a party which loses many seats in parliament by a narrow majority such a party may have a bigger proportion of the votes but with very little representation in Parliament. Secondly the exorbitant expenses which go into financing elections by demarcating constituencies and the frequent voter registration. Further more it is argued that this system is prone to corruption.

8.5 Government is of the view that the system of parliamentary representation based on first past the post is the system that guarantees voters a direct choice voted for by them and links the representative with the represented constituency. It is a more common and better-comprehended system in Tanzania and many other Commonwealth states. The system of proportional representation is alien in this country and does not link the voters with their representative. Even then, presently there are special seats for women which can be obtained on the basis of the proportion of constituencies represented by each party. Government opinions that this is the system which should be upheld and that the number of seats should be increased relative to the number, significance and the place of women in our community. Besides government thinks that there is need to have some parliamentarians directly appointed by the President. This will help to bring into parliament people with long experience, skill and expertise in various social issues which can help parliament to work more efficiently and also expand the spectrum for the Presidents appointments into the cabinet basing on the experience, expert and academic qualification of the members.

Ninth Point

That the electorate of any constituency and of any interest group should have a right to recall their parliamentary representative even before the expiry of the parliamentary term for non-performance.

Government’s View

8.6 This system is difficult and too costly to implement. To accept this demand may lead to frequent by elections first in recalling the member and secondly electing another one. Under the current system, the duty of dealing or punishing a non-performing Member of Parliament lies with sponsoring political party. It is that party that has the powers to remove the non-performing member from parliament by stripping him/her of party membership. Government is of the opinion that the present system is adequate in dealing with a non-performing Member of Parliament. Even then, government welcomes the public views of this issue.

Tenth Point

That the present system of by-election whenever there are vacant seats is costly and thus there is need for its review for the purposes of reducing the arising expenses. It is recommended that there be put in place a system whereby the system of filling the vacant seats will either be cheaper or abolish by-elections forthworth.

8.7 Governments Views

Government opinions as follows:

a) election of a parliamentary representative is a right of the electorate in a concerned constituency. It is true therefore that whenever there is a vacant seat a by-election be held. This system strengthens representative democracy. To reduce the cost of by-elections the government recommends that there should be no holding of by-elections anytime within 12 months before the dissolution of Parliament. Also, there should be a permanent voter register book in all the constituencies to reduce the frequent voter registration.

b) Special seats for women, whenever they fall vacant for whatever reasons should be filled by the political party which has lost based on the list it presented to the electoral commissar before the previous election and if a political party loses constituent parliamentary seats the number of its special seats for women should not be affected. However government welcomes peoples views on this matter.

c) Structure and Appointment of the Electoral Commission

Eleventh Point

That the composition of the electoral commission not representative of the political parties and the appointments are Presidential in which case the appointing President may be a leader of the ruling political party.

For this reason, the Electoral Commission members are likely to have bias for and feel more accountable to their appointing authority in the execution of their duties. Those who hold this view recommend that either other political parties be represented or there should be a body vet the names of tentative committee members before they are official appointment by the President.

Governments Views

f) Appointment of the Ministers

Twelfth Point

That in order to have complete separation of powers between the executive and the legislature, the President should not form his cabinet of Ministers from a more parliamentarians and that there should be a Constitutional provision for a government of unity or rather a coalition government.

Government’s Views

10.1 As explained in article 6.1 of this Paper, Tanzania is one of the countries whose democracy is based on the parliamentary system. Under such a system ministers are appointed from among the members of parliament. The Cabinet of Ministers is then accountable to Parliament. Government view is that this system should continue under this system, the President will appoint his cabinet of Ministers form among the members of Parliament who are individually accountable to him but collectively answerable to the people who are supreme through Parliament.

10.2 With regard to the suggestion that the Constitution be amended in order to provide or a coalition government, the truth is that in a multiparty system a coalition government arises from the election results whereby none of the contesting parties wins the number seats required for it to form a government alone without involving other parties. A coalition government is not formed by Constitutional provisions. Nevertheless, if there is need for forming a coalition government as a result of the election results article 51 (2) of the Constitution of the United Republic already enable to do that. However, government welcomes peoples views on this matter.

h) Involvement in Political Affairs by Civil Servants

Thirteenth Point

That Civil servants should not participate in the political activities to ensure their allegiance to any government formed by any party which becomes the most successful in an election.

Government’s Views

11.1 Presently the government has set up a mechanism which enables its mid level and lower level servants to fully participate in political activities. However, under the arrangement high level officers are free to associate with any political parties and if they wish may vie for office within their parties on condition that they resign from their employment as civil servants. The government thinks this arrangement right to continue. Government welcomes people’s views on this matter.

h) Participation in Political Affairs by Regional and District Commissioners Fourteenth Point

That Regional and District Commissioners should be civil servants by virtue of their appointment and terms of employment; that they should be political servants who are elected by the people; or that they should be political leaders, but since they represent the President should continue to be appointed by the President.

Government Views

12.1 Government opinions that Regional and District Commissioners should continue to be political leaders directly representing the President in their respective areas. For that matter they should remain presidential appointees. Since our country does not follow the system of Provincial governance placing Regional and District Commissioners under direct election will entail introduction of provincial governance which might in turn plunge the country into tribal politics and threaten/endanger peace, unity and our national solidarity. Even then government still welcomes public view on this matter.

i) The words "Socialism" and "Socialism and self-reliance" in the Constitution

Fifteenth Point

That the use of the words "Socialism" and "Socialism and self reliance" in the Constitution should be deleted because they depicit the ideology of the ruling party.

Government Views

13.1 There are many other Constitutions in many other countries with similar words but which are not necessarily regarded as depicting the ideology of any party; even then the presence of such words in the constitution of those countries has never prevented other political parties with different ideologies from forming their governments or implementing their policies. E.g. the Indian Constitution contains the "Socialism" That word has never prevented other parties with Capitalist or liberal or religious ideologies form forming their government or implementing their non-socialist policies. Those words are not used in the Constitution as ideology a party but as important national aspiration.

The basic features of socialism are equality of the people, justice, fraternity and humanity. Tanzanians expect our community to be built around those ideals. Further, the word "self reliance" is used to reflect the hope of the people that the construction of this country will depend on the ability, efforts, wisdom and self-less sacrifice of the Tanzanians themselves and whatever aid that is given is a more addition. This is the concept of self-reliance which is acceptable to a majority of Tanzanians.

For the matter the words "Socialism and self-reliance" are applied in the constitution in the meanings expounded on above and which meanings are acceptable to a majority of the citizens. Even then government welcomes people’s views on this matter.

14. Striking off the Forty Unconstitutional Laws
The Sixteenth Point

141 "The Forty Laws" which the Nyalali Commission recommended in its report to stuck off the statute books as unconstitutional.

Governments Views

14.2 Firstly, the Nyalali Commission did not recommend for their striking off. The Commission rather recommended that some should be repealed and some amended or be revised by the Law Reform Commission. However among those 40 laws referred to by the Nyalali Commission only 27 concern the United Republic’s Parliament. The remaining 13 laws are to be handled by the Zanzibar Revolutionary council.

14.3 With regard to the 27 laws, after the government’s receipt of the Nyalali Commission Report it directed the Law Reform Commission to review them. Thereafter the Commission recommended that most of those laws remain in the statute books to reserve certain social needs which cannot be left unlegislated for. At any rate, both Commissions’ recommendations have been implemented. Those recommendations concerned the following:

a) Repealing the provisions for the monopoly of news and information gathering and dissemination from the National News Corporation of Tanzania (SHIHATA) Act.

b) To establish the National Security Service by Act of Parliament.

c) To allow proceedings against government in the High Court without the requirement of a fiat from the Minister of Justice.

There laws have already been repealed. The remaining laws will remain in force as recommended by the Law Reform Commission and shall be amended or repealed as and when need arises to serve national interests. Despite this government is satisfied that those reforms are not about the continuing or repealing of the 40 laws.

15.0 Legal Matters

The legal views so far aired concern three main areas. Firstly about Human Rights. Secondly, about constitutional contents which may be legislated for by ordinary laws e.g. certain official organs like the Permanent Electoral commission, the Secretariat on the Code of Conduct, the Parliamentary secretarial and the judicial service commission, the secretariat on the code of conduct, the Parliamentary Secretariat and the Judicial Service Commission. Thirdly is a literary matter concerning Constitutional provisions whose interpretations are not clear.

Seventeenth Point

15.1 That the provisions for human rights in the Constitution are less effective because:

(i) The enforcement of those Constitutional provisions of Human Rights is enabled by ordinary legislation’s;

(ii) Most of those provisions contain claw back clauses;

(iii) It is very easy to amend the provisions on Human Rights and therefore there should be enacted terms which would make the amendment of provisions on Human Rights less easy including holding a referendum.

(iv) Human Rights should be provided for in the Constitution verbatim as in the International Declaration of Human Right and other International Human Rights Conventions.

Government Views

15.2 The guarantee of fundamental and basic rights and citizens’ duties is contained in Part II and Part Ill of the First Chapter of the Constitution of the United Republic of Tanzania. Part II of the First Chapter also contains National objectives and directive principles of State Policy. Those objectives can neither be challenged nor enforce in a court of law. Those objectives include Economic rights, Social and some cultural rights whose enforcement depends on the economic capacity of any one given country. This arrangement of the right in Part II of Chapter I of the Constitution has been used by many countries in the world. Then Part Ill of Chapter I of the Constitution concerns the fundamental and basic rights and duties which can be enforced in a court of law. This part includes almost all the Human Rights as contained in the International Declaration of Human Rights and detailed in the International Convention on Civil and political rights.

15.3 Regarding the claims that the human rights contains claw back clauses the example given is that while articles 12 to 29 guarantee the Fundamental human rights constitutionally, article 30 of the same provide for general lime of the rights which make them of no effect. Human Rights can not be absolute. Those rights must be curtailed to prevent violation of community rights and national security. Government’s opinion is that since every individual is part of the community and exercises his right within the community, article 30 is therefore right, appropriate and necessary to limit the exercise of individual rights and to protect Community rights and national security.

15.4 The recommendation to embed in the Constitution all the provision of the International Declaration of Human Rights, the International Convention on Civil and Political rights, the International Convention on Economic, Social and Cultural rights and the OAU charter on People’s Rights is impracticable. The Declaration and the Convention lay down the general objectives and foundation for the fundamental human rights which every member state should observe in its Constitution and other legislation’s. However, the member states in so doing, have modified those objective and human rights to suit their own environment.

15.5 The recommendation to rewrite the rights and duties more expressly and putting a mechanism which will make it less easy to amend the relevant articles is debatable, However so far courts of law have not failed to apply the existing provisions on human rights in granting justice. Further the method being suggested of amending by way of referendum is too rigid and could hamper the addition of those rights when need arises.

15.6 Regarding the Constitutional observance of the Human Rights through enforcement under ordinary legislations, government is of the view that there is no right without duty. Therefore, all the human rights must be legislated for. For instance the personal right to freedom should be properly checked so that it does not interfere with other peoples rights, or the right to life must adequately protected to prevent some people who believe that since they have the right to life they can just take others’ lives as they wish. Even the government welcomes views and recommendations to improve the provision of freedoms and duties in the National Constitution to improve strengthen enforcement.

15.7 For quite a long time there have been claims that article 13(5) of the Constitution is prejudicial and discriminatory as it promotes gender discrimination. This discrimination enables government to accord affirmative action in favours of women by for example, allotting special seats for them in Parliament and local government councils and by formulating policies which promote women. That discrimination would have been illegitimate if the Constitution did not provide for it. Even then government welcomes peoples views on this matter.

16.0 Areas of Uncertainty Eighteenth Point

16.1 That there are areas in the Constitution whose interpretation is with ambiguous or vague. For instance it is not clear as to when a Member of Parliament shall cease to be a Member of Parliament. Article 71(1) of the Constitution provides that where a Member of Parliament has not been disqualified as Member of Parliament, died of resigned, he shall continue to be a Member of Parliament until the next general election.

Governments Views

16.2 The Courts have interpreted this article to mean that a Member of Parliament ceases to be a member of Parliament ceases to be a member of parliament upon dissolution of parliament. In addition, it is common sense that a parliament member’s term lasts as long as parliaments term expires. Dissolution of Parliament means bring the life of an existing parliament to an end and parliamentarians have completed their job unless there is more assignment which constitutionally must be handled by parliament even when that parliament has been dissolved e.g. proclamation of war. The current system is to continue having the same members of parliament until the completion of the next election. Since it is possible to deploy the existing members of parliament to perform parliamentary functions even after the dissolution of parliament. To reconcile the judicial decisions especially election petitions and the parliamentary procedures as explained above there is need for express constitutional provisions to the effect that the tenure of parliament should end upon the completion of the next election. However, government welcomes public views on this matter.

17.0 Constitutional Establishment for Various Bodies

17.1 That there is no need for providing for the establishment of certain bodies in the Constitution. The bodies referred to here include the Parliamentary Secretariat, the Judicial Service Commission, the Permanent Commission of enquiry and the Ethics Secretariat.

Government Views

(a) The Parliamentary Secretariat

This Secretariat is mentioned in articles 87 and 88 of the United Republic’s Constitution. Those articles create the office of the Clerk of Parliament and the Parliamentary Secretariat whose function is to facilitate the functioning of parliament and its powers. Since it is only a service body, the government concedes that there is no more need for its provision by the Constitution. However since the enactment of the Parliamentary Service Commission, Act this article has been overtaken by events and is thus absolute.

(b) The Judicial Service Commission

This Commission is referred to in article 112 of the United Republics Constitution. Among others its function is to advise the President on the appointment of High Court Judges under article 109(2) of the Constitution of the United Republic and to exercise disciplinary control over the judges. Judges functions are constitutional further, judicial service is part of separation of powers for under article 4 of the Constitution of the United Republic the judiciary one of the organisations of the state. The government believes that such an important body which deal with the appointment and disciplining of the judicial officers should remain as constitutional body. Therefore the judicial service commission and its authority should remain as Constitutional establishment saves for its functions which may provide for in a legislation.

(c) Ethics Secretariat

This Secretariat is provided for under article 132 of the Constitution of the United

Republic. This Secretariat is charged with among other things ethical control of various public leaders including those who are either appointed or elected under the Constitution, such as Member of Parliament and judges. To remove this secretariat from the Constitution is to weaken it powers. Government recommends that this Secretariat should remain a constitutional establishment.

(d) The Permanent Commission of Inquiry

This Permanent Commission of Inquiry established under Chapter 6 of the Constitution of the United Republic. It has the duty of controlling abuse and misuse of power by public officials. This commission was also established under the first National Constitution (the Constitution of Tanganyika) as a compromise when it seemed inappropriate then to include the Bill of rights in the Constitution, that is why the Bill or rights was not keenly regarded then by courts. Since Human Rights are now part of the Constitution and keenly enforced by courts of law, government agrees that the establishment of the Permanent Commission of Inquiry can be done away with from the Constitution without affecting its efficiency in controlling abuse of powers through the existing laws. In any case the government has already endorsed the recommendation for the establishment of a Human Rights Commission which will also carry out the functions now being performed by the permanent commission of inquiry. Government still welcomes peoples views on these matters.

18.0 Conclusion

As explained earlier, the government has issued this paper together has issued this paper together with its views, directives and reasons therefore, for the people debate and give their own views. Since is a public exercise the government hereby expressly declares that the people are absolutely free to express their opinions/views in all aspects they deem crucial even if not touch on in this Paper. The government will establish a special commission charged with the task of collecting and gathering people’s views. All the people are implored to utilise this special opportunity to present their views to the said special commission, or in its sessions or through its postal address here below given: The Secretary The Views gathering Commission

P.O. Box 9050 Dar es Salaam Fax:255 51113236

18.2 The government will review its views in accordance with the weight of the views in accordance with the weight of the view gathered from the people. Upon government making decision, the relevant Bills for the Constitutional reform will be prepared and tabled in parliament.