KATIBA REVIEW SPECIAL: New Katiba won’t serve purpose

Some members of the Constituent Assembly dance in jubilation during the launch of the proposed Constitution in Dodoma last year. PHOTO | FILE 

By  Mwassa Jingi

In Summary

• We must agree in all honesty that the proposed Constitution is not up to the standard due to the fact that its fundamental provisions have been removed or changed.

Mbeya. From the historical point of view, we know that no human society in this world that has ever existed without any kind of legal system in any form, whether taboos or rules that governed its
members no matter how barbaric and rudimentarily it was. Fundamentally, each society evolved with customs, traditions and then unified its rudimentary legal system as a way of establishing itself as a well-organised and constituted nation with a certain acceptable legal system – Constitution and laws on different matters. 

Even before colonialism, all Tanzanian societies or communities constituted themselves with certain legal system (though unwritten) under chiefs, akidas or jumbes, who were responsible for enforcement of agreed norms for the common good.

In today’s modern world, many countries, including Tanzania, have developed democratic  legal systems, which have two main classes - the first one being the Constitution and the second  is development of many and different laws, though  inferior to the Constitution.

Thus, having a Constitution and other laws for the country is one thing, but the implementation of those laws is the other, and the most difficult task. Sometimes it is even easier for a country to develop its legal system in terms of Constitution and laws than developing a proper mechanism for the enforcement of its legal system. What affects law enforcement is the presence of corruption, lack of commitment and irresponsibility among society members. The presence of a legal system without effective enforcement is nothing and that is what we are lacking as a country.

 The Constitution of any county is the fundamental law of the land from which all other laws and their enforcement are derived from and for that matter the laws should not contradict the Constitution. It is a book on which rights and responsibilities of the citizens are provided, the boundaries, structures and systems for running of the county are enshrined. Normally, all important matters of common interest are enshrined in the Constitution, though not necessarily the case. There are a few but existing countries, which till today have no written Constitution, but have their own unwritten Constitutions. The United Kingdom and Israel are good examples.

The Constitution also puts in brief, but in clear terms how the country is to be governed by putting into place the structure of three main pillars of state and other necessary authorities and machinery. The grand purpose of having a Constitution and other laws is to enable all citizens and residents of a given country to live with assurance that they are governed with predictable rules of laws. Without having a good legal system, members of society may live in fear without knowing what tomorrow will bring forth for better or worse on their lives.

Thus, people must be governed with a well-predictable and enforceable legal system. That is why in Tanzania for almost four years now we have been busy trying to write a good Constitution that will be enforceable for the well-being of the current generation and its posterity.

Nevertheless, there is a direct connection between development of the people and the legal system they have constituted. This depends on the enforcement of laws. It is the enforcement of the legal system, which differentiates the development and civilisation of one society or one country from the other.  While it is easier to develop a country’s legal system  in paper, sometimes even by copying from other countries and  then pasting the same in our own papers, it is impossible to copy and paste enforcement of laws from other countries as we may do with laws. We Tanzanians to some extent are lucky because we inherited a developed legal system from the British rule, which was both adoptable and adaptable, rather than creating our own immediately after independence.

We have a constitutional rule though without best quality since independence to date, and we are now developing a new Constitution with high hopes that the new one will speed up development and civilization because the old one is becoming obsolete. Many Tanzanians now know the importance of having their rights enshrined in the Constitution, but are very indifferent when it comes to law enforcement. For instance, we have the Road Traffic Act, 1973 just like other developed countries. The enforcement of this law does not bear anticipated results because of low level of enforcement. Our principal law enforcer, when it comes to public law, is the Police Force. A member of the Police Force can irresponsibly take as little money as Sh2,000 from a careless car driver and leave such a driver continue with negligent behaviour.

Almost all researches, which have been conducted in the past with regard to road accidents, have found out that the main causes are negligence and reckless driving. It’s true that our road infrastructure is not as good as of developed countries, but that cannot be an excuse for our drivers and other road users to drive recklessly.

Our drivers do not adhere to road signs because they are sure that the traffic police can be bribed with very little money. Law enforcement can work only in an environment, where members of society execute their duties with high integrity.  Had our drivers and other road users adhered to laws, the rate of accidents would not be such alarming, wherefore within one month period we record more than 100 deaths due to road accidents caused by careless driving.

Our country is still highly rated as corrupt in almost the entire public sector not because there are no laws and authorities established for preventing and combating corruption, but because of lack of law enforcement.