Fables of the constitution making process in Tanzania…

Published on: Sunday, March 2nd, 2014

 By Elias Mhegera – There are many questions surrounding the attempt by the ruling Chama Cha Mapinduzi (CCM) to quash second draft of the New Constitution Bill which is currently under the special Constituent Assembly in Dodoma central Tanzania, for tabling.

Special voices in the debate

Judge (rtd) Amir Manento-Chairman of the Commission for Human Rights and Good Governance (CHRAGG), he is pro a three-tier Government

Prof Josephat Kanywanyi; warns that the three-tier Government will weaken the Union

Law Professor Chris Peter Maina he is pro-three-tier Government

Earlier there was much ecstasy with the coming of this second draft, but the appointment of some party stalwarts of the CCM did signal that there is an attempt to manipulate the process, and there are reasons for this, analysts now say.

Although it is difficult to come up with clear answers but one can construe the whole meaning of this through the tug of war particularly on the nature of the Union. Although there are many good proposals in the Bill, but now the whole discussion has drawn attention to either two or three-tier Governments.

This has now been echoed in various circles, starting from civil society organizations (CSOs), the Pentecostal Churches of Tanzania (PCT) and the public at large. CCM as a party is openly supporting the two-tier Government, opposition parties are pro-three tier Government.

The main claim is that the Warioba Commission also known as the Constitutional Review Commission (CRC) had adhered, to a large extent, to the people’s wishes of formulating their own constitution, but some politicians have been trying to reduce the entire process to their vested interests.

One assumption is, if the new three-tier structure is to be applied then it would be easy to remove the CCM from power. It is argued that it is because of this reason that the Tanzanian Government is forcing all political parties to fall within all the two parts of the Union, Mainland Tanzania and in the Isles.

But for the Catholic Church followers the matter is bit complicated because its’ top most leader in Tanzania Polycarp Cardinal Pengo, Archbishop of the Archdiocese of Dar es Salaam, said it categorically that those supporting a three-tier government were tired of the Union and ‘selfish.’

Implicitly he was representing the RC’s stance where the Union matter is concerned, but this does not mean that he commands an overwhelming support in this matter from all his followers.

The point is, the question of whether to continue with the current structure two-tier of the Union is not conclusive in itself if one was to analyze it in line with party affiliations or religious inclinations. There are Muslims from the Mainland who support a two tier, likewise those who support a three-tier structure.

There are Muslims from the Isles who support the two-tier, but a big number (if not all) supporters of the Civic United Front (CUF) supports a three-tier Government but under special contracts. Sympathizers of the CUF have been complaining in many occasions that the Union Government has been assisting its wing in the Isles to win against their presidential president Maalim Seif Shariff Hamad who has gone in the race four times.

For them now it is the time to escape ‘colonization’ of the Mainland through the Union. So although supporters of the three tier are found from the two sides of the Union but their reasons are quite diverse and not necessarily of the same nature.

Deus Kibamba –holding the 1977 United Republic of Tanzania Constitution, Chairman of the CSOs –Jukwaa la Katiba (JUKATA) i.e. Constitutional Forum, he is pro-three-tier Government just like many leaders of the CSOs in Mainland Tanzania

Deus Kibamba –holding the 1977 United Republic of Tanzania Constitution, Chairman of the CSOs –Jukwaa la Katiba (JUKATA) i.e. Constitutional Forum, he is pro-three-tier Government just like many leaders of the CSOs in Mainland Tanzania

This was revealed during a recent debate by one seasoned academician who is a supporter of the three-tier Government, as he is quoted here; “It is for the first time that Tanzanians are going to have a constitution of their own after having been subjected to ‘borrowed’ constitutions for a long time,” said a senior law lecturer Prof. Chris Peter Maina, who also support  a three-tier Government.

The don said this at the Ubungo Plaza where he was a discussant at one of the constitutional forums – jointly convened by the Konrad Adenaur Stiftung (KAS) and the Tanzania Development Initiative Programme (TADIP) early this month of February 2014. Similar statements have been made in other meetings.

Julius Nyerere mixing soils of Tanganyika and Zanzibar symbolizing the Union

Julius Nyerere mixing soils of Tanganyika and Zanzibar symbolizing the Union

Probably one of the main consolations to sympathizers if the three-tier Government was when the Chairman of the Commission for Human Rights and Good Governance (CHRAGG) stated openly that he supports the three-tier form of Government, “you can quote me anywhere, I am for three-tier Government,” he boldly affirmed.

On January 31, for instance, the Chairman of the Constitution Forum, Mr. Deus Kibamba, also listed a number of demands from civil society which had since been accommodated in the new Draft Bill, saying: “We are heading towards a positive democratic transition.” He was addressing a well attended meeting at the New Africa Hotel Hall.

Again, this forum was orgnaised by the Friedrich Ebert Stiftung, (FES), the Constitutional Forum well known for its Kiswahili name Jukwaa la Katiba (JUKATA), and the Konrad Adaneur Stiftung which drew experts who were keen on disseminating good knowledge in the formulation of the new constitution after having discussed it thoroughly.

Julius Nyerere and Abeid Karume signing the Articles of the Union

Julius Nyerere and Abeid Karume signing the Articles of the Union

During the opening speeches, the two resident directors of the KAS, Stefan Reith and Rolf Paasch, called on civil societies to play an active role in empowering the Constitutional Assembly, and eventually the general public,  to get ready for the referendum sometimes later this year.

Already, there are lots of public expectations against the backdrop of political interests. “I can predict that three things will draw significant attention, namely, the nature of the Union, natural resources, and the consequences of all these to the local government authorities in the future,” Kibamba said.

Kibamba also warned that despite apparent jubilation at the rebirth of a Tanganyika government in line with the three-tier recommendations, this could possibly weaken the United Republic of Tanzania as a sovereign state.

Analysts also project that the Warioba Commission had reflected more on a three-tier government and, if not possible, the whole process would have to be delayed because of the structural setbacks.

Although experts insist that discussions focus on yet unspecified ‘pertinent’ issues rather than the nature of the Union, all attention seems to have been directed at “the Union matter”  and this was reflected by reactions from the 201 members that were appointed by President Jakaya Kikwete and their names were announced on February 8th, 2014.

For instance, a board member of the Tanzania Constitutional Forum (TCF), Mr Hebron Mwakagenda, raised concerns that some of the appointees do not belong to the civil society  and that they had been appointed in order to foster the ruling party’s agenda  the two-tier government which has been a big source of commotion between the opposition parties and CCM.

But the National Coordinator of the Tanzania Human Rights Defenders Coalition (THRDC), Mr Onesmo Ole Ngurumwa, also raised similar concerns that human rights activists had been sidelined.

“It has come as a surprise to us … when strong human rights NGOs like the Legal and Human Rights Centre have been sidelined … this is a political agenda,” he told a news conference that was organized by the TCF.

The mayhem of the CSOs and a sect of the PCT tells that the draft Bill might have been exhaustive and promising but the process of formulating a new constitution might be flawed mid-way. Ms Gemma Akilimali, representing women interests at the debate, agreed that the new constitution was promising and that women issues were adequately addressed.

She said through the Women Coalition on Constitution (WCC) they had worked hard to ensure gender equity in keeping with global protocols to which Tanzania was a signatory.

“We have formed a good team … drawn from … the Legal and Human Rights Centre (LHRC), the Tanzania Gender Networking Programme (TGNP), Women’s Legal Aid Centre (WLAC), Tanzania Women Lawyers Association (TAWLA) and other stakeholders … the trend is promising so far,” she commented.

Ms Rahma Bajun from the Tanzania Youth Coalition agrees, saying that most of the demands from the youth had been accommodated in the second draft of the Bill.

“One of the most startling was a clause on the age of potential legislators … the first Bill had risen to 26 … this one has gone back to 21 years, this is a positive development,” she affirmed.

Moses Kulaba, Executive Director of Agenda Participation 2000, approves most of the items of new draft Bill, but is worried as to whether the new constitution will come with strong anti-corruption mechanisms.

Also he cherishes that it is clearly stated that the new constitution will be supreme where Union matters are concerned.

“I am happy that this is clearly explained but the task will be for the two governments in the federation, that of Mainland Tanzania regardless of its new name, and that of Zanzibar to reflect these new developments, otherwise it was so confusing particularly after the formulation of the Zanzibar Constitution in 2010,” he remarked.

Prof. emeritus Josephat Kanywanyi of the University of Dar es Salaam raises issues in Chapter 17 of the Bill. “I am worried that the spirit behind many discussions on this chapter is not to strengthen the Union, but to go separate ways,” he warned.

The elderly professor suggested that the debates should have focused on how to reduce or remove altogether the imbalances of the 50 years Union. It is this stance that was once shared by Cardinal Pengo

This strong statement could have probably been received as ‘good news’ by some ruling CCM stalwarts where many analysts have since been identified as the main propagators of the two-tier government — which many of the young people now active in the current politics do not share!

But while this remained a strong position of mainstream CCM stakeholders, the main opposition party Chama cha Demokrasia na Maendeleo (CHADEMA) is for a three-tier government, while another strong opposition particularly in the isles, the Civic United Front (CUF), as mentioned earlier, supports the three-tier government   but under what it calls ‘special contracts.’

“I am totally convinced that the three-tier government will weaken the Union … this will have severe repercussions even in the working of the new constitution itself,” remarked a renowned academic.

Narrating the long history of the Union, he said that it was wrong to assess the Union within the context of happenings in 1964 but from ‘the commonality of a number of issues prior to that.’

He chose his words carefully, knowing that a good number of participants inside the hall supported the three-tier system of government.

He suggested that even if the new Union were to follow this new formula, there would be a need for thorough discussions along it.

“I know for sure that the Union did not survive simply because there were general acceptances on issues, but also partly because Mainland Tanzania (Tanganyika) had projected the supremacy of the Union than the shortcomings,” he argued.

These statements  from Prof Kanywanyi  which attracted a considerable attention given his age, experience and exposure reminded the audience of what the founding father of Tanzania, Mwalimu Julius Nyerere once warned that once the Union between Tanganyika and Zanzibar is over there could be a breakaway of Pemba from Unguja as well as a spill-over effect.

Similar statements were also once made by the Second Phase President Ali Hassan Mwinyi, the Third Phase President Benjamin Mkapa and even the incumbent Premier Peter Pinda. One can predict that these warnings are an indication that the three-tier government much as it is being celebrated in the Mainland, is just a lee-way to the total crumble of the Union.

So defenders of the Union as it is, or with minor modifications, might be differing on their vested interests, but they can be as well sharing the final results of a demised Union.

For instance it has been discussed in many circles that a lot of issues surrounding the Union are never discussed openly. While in 1964 the possible reasons could have been containing “Communism” as it has been reported so many times, but also it was to cushion the new Zanzibar regime from a possible ‘counter-coup’ from the deposed Sultan Jamshid bin Abdullah.

Read more at: http://www.jstor.org/discover/10.2307/4288980?uid=3739224&uid=2&uid=4&sid=21103425890591

But reading from the current political development if Zanzibar was to assume supremacy then this will entail assuming some powers which are firmly withheld in the Union fabric particularly foreign affairs matters. Zanzibar’s sovereignty will definitely wipe out Christianity in the two islands.

Attempts to join the Organization of Islamic Conference (OIC) on the part of Zanzibar have been quashed twice on grounds of the supremacy of the Union Constitution which is explicit in the Article 19, of the Constitution of the United Republic of Tanzania, that Tanzania is a secular state.

Hence the worrisome attitude by the Roman Catholic head in Tanzania, are compounded within attempts by Zanzibar’s attempt to join the OIC, and this does not go without explanation of the “fear of the unknown” read more at: http://www.zenit.org/en/articles/is-tanzania-the-next-target-for-radical-islam

However even within the new constitution, Union matters have retained the same test concerning joining international organizations as it is well stipulated in the Montevideo Convention, on the Rights and Duties of States, agreement signed at Montevideo, Uruguay, on December 26, 1933.

Thus the Union matter is crucial in determining the new Tanzania as enshrined in the ongoing debates. When he was interviewed by The Guardian on Sunday exclusively, retired lecturer from the Philosophy Department of the University of Dar es Salaam Dr Azaveli Lwaitama had this to say, “There are shared interests between the Zanzibar CCM supporters and their counterparts from the Mainland no wonder the appointments of members of the constituent assembly had reflected these hidden interests”.

For him therefore there will be a lot of manipulations in order to ensure that the three-tier structure is quashed or the whole process of the formulation of the new constitution is facing snags altogether. These assumptions from the don are shared again by Olengurumwa from the THRDC.

He had this to say when he was contacted for comments, “It is apparent that CCM’s interest will prevail in this process, this can be detected through such appointments of ‘their’ stalwarts Kingunge Ngombale Mwiru, and Paul Kimiti, these are former Cabinet Ministers and they do not belong to the CSOs, their subsequent penetration leaves a lot to be desired,” he commented.

He further mentioned some  CCM cadres who have been appointed to fulfill this desire as Abdallah Bulembo, Paul Makonda and many others whose appointments he claims has been done much to the detriment of the citizenry and for the benefits of the CCM.

This stance is shared by Hebron Mwakageda a staunch member of the CSOs and current CEO of the Tanzania Coalition on Debt and Development (TCDD) who says that he has never seen Mzee Kingunge in the CSOs for the past 20 years and his sudden emergence there as their representative is a serious joke.

But speaking on Zanzibar’s contribution through the Zanzibar Legal Services Centre (ZLSC), was Jasad Bungala who says the main interests of Zanzibar in the process, at least from the CSOs was recognition of Zanzibar’s contribution to the Union Government, rectification of certain clauses’ in foreign affair matters, and the Union  Presidency.

Moreover, he mentioned other aspects as the need to have an independent government from the Mainland so that it can be conjoined with Zanzibar in forming the Union Government. He also advanced that all borders including those in the ocean must be clearly explained in the new Union constitution.

Probably these demands from Zanzibar can be explained within the framework of what have been termed several times as “kero za Muungano” (Union nuisances) particularly from the Zanzibar side.

To mention a few of those it is the question of the presidency which Zanzibari’s says it should be switched in turns that once the president from the Mainland completes his tenure they should be automatically succeeded by one from the isles.

In this particular note the incumbent President Jakaya Kikwete from the mainland Tanzania had succeeded Benjamin Mkapa also from the same side of the Union. While in regard to Union borders there have been a claim that Tanzania Mainland is to extract some minerals and gases which belongs to the Zanzibar waters and therefore in the process trespassing the Articles of the Union.

In this bid there have been many campaigns covertly and openly that the Union was imposed in order to suppress Islam as a dominant religion in Zanzibar, as well as to ‘steal’ natural resources from Zanzibar including oil and gas.

In May 2006 it was reported in the media that ten Zanzibaris had filed a case against the mainland over the Tanzania Union agreement and the Coastal Strip, they also sued their Attorney General and the Secretary General of the House of Representatives over the Isles’ loss of its seat in the United Nations.

Others sued include the secretary general of the ruling Chama cha Mapinduzi (CCM) and the Speaker of the House of Representatives for “colluding to infringe Zanzibar’s sovereignty.

“Therefore if one was to reflect the demands by the ZLSC they were replica of these long upheld demands of a Union framework which undermines Zanzibar’s political hegemony.

While the demands are still hot in many circles, the media has been reminded its vital role of amplifying this debate and set the national agenda for the sake of acquiring a new, table and far reaching constitution according to Prof Maina, when summing up issues at the panel discussion.

So far there has been a lot of lobbying from various circles as there has been a general belief that a certain sect of politicians is there to hijack the new constitution formulation process in their interest.

photo: Deus Kibamba, Chairman of the Tanzania Constitutional Forum well known a Jukwaa la Katiba in Kiswahili, Tanzania's national language