Former chair of the Presidential Constitution Review Commission Joseph Warioba. PHOTO | EMMANUEL HERMAN
Most of the opposition members have walked out
of meetings and have vowed never to return. Committees are failing to
meet because of quorum deficits. Individuals and groups are seeking
court injunctions to stop Tanzania’s Katiba process.
Still, what remains of the Constituent Assembly carries on with its work, apparently undaunted by these difficulties.
Since the start of its assignment, the CA has been
dogged by controversy, set in motion when President Jakaya Kikwete went
to Dodoma in March to inaugurate the Assembly, but used the occasion to
criticise the draft constitution prepared by the Presidential
Constitution Review Commission (CRC).
The main bone of contention seemed to be the
proposed three-tier union government structure proposed by the CRC,
headed by former prime minister and former Attorney-General Joseph Sinde
Warioba.
The president’s remarks surprised many who saw it
as a volte-face for a leader to criticise his own commission’s work.
After all, the draft constitution was sent to the CA under his
signature.
Reports suggested President Kikwete had been
“bullied” by his party bigwigs who had told him that he should never bow
to policies that are not his party’s.
Following acrimonious wrangling, a section of the
CA calling itself the Association for a People’s Constitution, under the
Kiswahili acronym Ukawa, staged a walkout saying it would not go back
until the draft constitution is recognised as the only basis for
deliberations.
A number of organisations, including the Law
Society of Tanganyika, have filed suits with the High Court seeking an
injunction to restrain the CA from continuing with its work, claiming
that it contravenes the provisions of the Constitution Review Act of
2012.
The chairman of the CA, Sam Sitta, insists no law
has been violated and says to stop the CA’s work at this point would be
wasteful of both the money and the efforts already expended.
“Too much money has been spent on this exercise,
first with the CRC and now with this CA, and to abandon this work at
this juncture would be pure waste,” Mr Sitta was quoted as saying.
This view is opposed by retired auditor Arsene
Margwe, whose view is that continuing with the exercise is “throwing
good money after bad.”
Others who have gone to court to stop the work of
the CA include journalist and publisher Saed Kubenea, and political
firebrand, Christopher Mtikila. All the applicants before the High Court
want the CA disbanded or postponed because it seeks to undo the work
done by the CRC, which, in their view, the CA is not empowered to do
under the law.
A senior advocate of the High Court who prefers
anonymity said in most constitution-writing processes, people’s views
that are received by the CRC and presented in a draft constitution to
the constituent assembly can only be improved upon to make their
applicability easier, not thrown overboard to incorporate new views.
This was also the view expressed by Kenyan legal expert PLO
Lumumba when he addressed a meeting in Dar es Salaam a few weeks ago.
Calling on Ukawa to go back to the CA and seek compromise, Mr Lumumba
said it was unusual for the views of the CRC to be thrown out; rather,
the CA should refine the draft, not alter it.
He was also surprised that the CRC had been
disbanded before the completion of the review process and its website
taken off the Internet.
“The CRC should be in place, providing guidance as to how it arrived at certain views, giving interpretations,” Mr Lumumba said.
Members of the CRC have expressed dismay at how
they were treated by state authorities and the way ruling party
stalwarts have attacked Mr Warioba over what was collective work by the
Commission.
Law lecturer Palamagamba Kabudi, who was a member
of the CRC, is especially unhappy. “People who know nothing about law
and constitution-making are finding the temerity to express their
stupidity because they think they are pleasing some people. We all made
the decisions together, we did not even vote on anything. Everything was
arrived at unanimously.”
A few weeks ago, Mr Warioba led five of his former
commissioners in addressing a meeting organised by the Mwalimu Nyerere
Foundation.
They exposed what they termed as hypocrisy of
their accusers. On the issue of the three-tier union structure proposed
by the CRC, former member Humphrey Polepole pointed at the double-faced
nature of some highly placed members of President Kikwete’s government.
“When they came to see us at the Commission, they
were for a three-tier structure. Now in public they are for a two-tier
union. What shall we believe, what they told us in private or what they
are now saying in public?” asked Mr Polepole.
The chicanery will continue because the
constitutional process is taking place against the backdrop of the
general election next year. People are posturing for posts, the most
sought after being that of president. The ruling party has some 20
would-be contestants, including Mr Sitta.
If he can deliver an acceptable document and go
down in history as the one who gave the country a new constitution, his
chances will be enhanced. If his efforts come to nought, he will be seen
not only as a failure but also as a traitor to those who are yearning
for a new political dispensation
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