Tanzania deserves new basic law

President Jakaya Kikwete 

By Benedict Nchalla

In Summary

The evidence is clear. At no point did the people – Zanzibaris and Tanganyikans – participate in the debate on, let alone the enactment of, the Constitution.

Pretoria. Although historians and lawyers differ on many issues, they share many characteristics. In making their arguments, both professions engage in case-making by citing scenarios, which can justify a status quo. They use research as a tool to build a particular line of argument. In support of this, it is hereby argued that the cry for a new Constitution has a historical basis. Hence, it is not a new one as it can be evidenced.

Important and respected personalities in the legal field and beyond have added voice to the demand for a new Constitution. Some political leaders have made promises that if they were to come to power, they would initiate a move towards a new Constitution in the country. The demands are made from time to time, whenever the opportunity arose, but the authorities have always found ways of justifying their refusal to embark on constitutional renewal.

For instance, during the famous Nyalali Commission of 1991, which went around the country to seek people’s opinion about whether Tanzania should continue with a single-party rule or adopt a multi-party system, people also raised their concern and gave opinions about the prospect of a new Constitution. The same concern appeared during the Kisanga Committee on the White Paper of 1998. This committee was tasked with obtaining public opinion on issues, which the government thought were of constitutional importance.

The White Paper posed questions and provided answers to the issues, the people were asked only to comment if they had additional comments on the answers given by the government. Yet, the government ignored their recommendations, charging that the commissioners had over-stepped the terms of reference they had been given. Moreover, in the 2010 general election, the demand for a new Constitution emerged vehemently because some of the political parties had taken this issue and placed it on the top of their election manifestos. They had promised the electorate that, if elected, they would provide the country with a new Constitution.

The Constitution of Tanzania of 1977 has suffered no such extreme fate. It may, therefore, be tempting to assume that it has been exceptionally resilient and successful, in terms of continuity and acceptance of its basic philosophy.

However, the fact is, the Constitution of Tanzania, 1977 does not meet the tests of constitutionalism – even if one cannot easily question its legality, the history of its adoption casts a long shadow over its legitimacy.

Thus, constitutional reform in Tanzania is currently considered a fundamental prerequisite. It is hypocritical to argue against or just say that, ‘let the people speak’, after such a long discourse in this chapter on the subject. The claim that the Constitution was made by the people is often included in the Preamble to a Constitution.

For instance, the Constitution of the United Republic of Tanzania of 1977 (as amended), after initial narration of some fundamental principles, concludes that part by stating: “Now, therefore, this Constitution is enacted by the constituent assembly of the United Republic of Tanzania, on behalf of the People, for the purpose of building such a society and ensuring that Tanzania is governed by a government that adheres to the principles of democracy and socialism and will be a secular state.” As Constitutions go, this is an exclusively modest claim. But it is accurate.

We have already narrated the antecedents, what we can call the legal facts, which formed the basis of the adoption of the 1977 Constitution. The evidence is clear. At no point did the people – Zanzibaris and Tanganyikans – participate in the debate on, let alone the enactment of, the Constitution. Even at the level of the party, the organ, that is, the national executive committee, which endorsed the proposals, was not the most representative organ in the party hierarchy. It must also be remembered that the Constituent Assembly which adopted the 1977 Constitution, could not even claim greater political legitimacy since, in practice, it was the pre-existing National Assembly with heavily skewed representation as already scrutinised. It is gratifying to note that a thorough evaluation of the status quo depicts the following candid reasons as to why Tanzania needs a new Constitution.

In the first place, the current Constitution of Tanzania of 1977 is obsolete. The present Constitution has not passed the tests of constitutionalism in its constitution-making. Tanzania deserves a modern Constitution, a Constitution born out of people’s genuine participation and consensus. Second is the Union issue, an architect of two people (Presidents Julius Nyerere and Abeid Amani Karume), despite the fact that President Karume might have been hauled into it. Thus, its existence was a private matter, for reasons known to the maker. The government should afford the people of Tanzania Mainland and Zanzibar an opportunity to decide whether to embrace it or to drop it.

Third, the current Constitution is not exactly ‘human rights friendly’. Since independence, Tanzania has ratified or acceded to a plethora of international and regional human rights instruments which have increased the range of human rights standards designed to benefit the people. However, the rights enshrined in those instruments are not captured in the 1977 Constitution, or are not justiciable.

In theory, at least, Tanzania has a Bill of Rights just like many other countries with a written Constitution. In practice, the Bill is far from reflecting the interests of ordinary Tanzanians. The Bill of Rights was rather a compromise with the new emerging Zanzibar leadership under president Ali Hassan Mwinyi. The Bill draws heavily from the international Bill of Rights, but leans towards political and civil rights. Social and economic rights are made part of directive principles which are not justiciable, while civil and political rights are circumscribed by claw-back and derogation clauses. Fourth, the demands for good governance, proper management of natural resources, and not just democracy, require that Tanzania adopts a Constitution tailored to meet them. Issues of the fight against corruption and the enhancement of the rule of law, for instance, will be better achieved under a new Constitution. Ultimately, there is a need to have a new Constitution in Tanzania in order to deal with the problem of impunity. The present Constitution protects impunity, which is not good for the contemporary time and future of the country.