Tanzania: Kikwete keen on giving country a new constitution

By Henry Neondo

Dar-es-Salaam---Nothing shows the direction Kikwete wishes to take in his first year
in office since re-election last year for a five year term meant to be his last than the
setting up of a commission meant to review the country’s constitution as the new
year begins.

He said the commission would be headed by a prominent lawyer, whom he did
not name, and would comprise members from both the Mainland and Zanzibar
presenting varied interests.

But while members of his party, the Chama Cha Mapinduzi lauded the move,
opponents however said the effort may not redeem Kikwete’s ineffectiveness.

Yusuf Makamba, Secretary general of Kikwete’s Chama Cha Mapinduzi said the
President was on the right track adding that the party saw the formation of a review
commission as the right decision to resolve the tug-of-war on the constitution.

With the formation of the commission, political parties are to submit proposals on the
kind of constitution they desire the country to have.

But Prof Willibrod Slaa who was Kikwete’s strongest opponent in last year’s
election and who also is the secretary general of the opposition party, Chama cha
demokrasia na maendeleo, Chadema, said President Kikwete did not make it clear
who will drive the process.

“What Kikwete wants to do is just to amend the current constitution,” he contended,
adding, “Tanzanians themselves should debate on the type of constitution they
want…the government should facilitate public debate on the constitution.”

Felix Kibodya, Tanganyika Law Society (TLS) president said the commission should
not be seen to be working for the government…it should be impartial in reporting
what the people want,” he said.

He suggests that the government should only be a coordinator in the constitutional
formulation process.

Francis Kiwanga, executive director of the Legal and Human Rights Centre (LHRC),
said the review body should not only collect people’s views but also be mandated to
present a draft new constitution to the public.

“A draft constitution drawn by the commission should not just be submitted to
the President without making it public for people to comment and decide on in a
referendum, otherwise the exercise would be meaningless,” Kiwanga said.

Prof Peter Maina of the University of Dar es Salaam (UDSM) warned that although
the announcement by Kikwete was good, it was however laced with challenges.

He said the biggest challenge would be to harmonise the Union and Zanzibar
constitutions.

“The two constitutions must not contradict each other in order to strengthen the
Union,” Prof Maina said.

Tanzania, formally under the British as a mandate under the League of Nations
and later as a Trustee Territory under the United Nations gained her independence
through a negotiated constitution with the former rulers.

In these negotiations the departing British had an upper hand.

According to Prof Maina, 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”, he said.

The Independence Constitution of 1961 provided a legal and constitutional
framework for that. Apart from the Tanganyika 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.

But, says Prof Maina, “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”.

What followed was a decision of the TANU’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”, says Prof Maina.

He said 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.

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).

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.

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 and later adopted as the constitution of the country with little
input from the citizens.

The move by President Kikwete is seen to be a reaction to clamour for anew
constitution which started in 1983.

Such moves, says Prof Maina, “have been thwarted time and again by the powerful
party stalwarts”.