OUR PROPOSED NEW CONSTITUTION:The new push by Jukwaa la Katiba Forum.

Pius Msekwa

IN my article of last week, Thursday 30th, 2017; I discussed the important matter of the “new push” by The Tanzania Constitution Forum (TCF) for the resumption of the new Constitution writing process.

This “ new push” was initiated by TCF Chairman , Mr Deus Kibamba, who, when speaking to journalists at TCF Headquarters, reiterated calls for President John Magufuli to kick-start the stalled process.

In view of this ‘new push’ for the resumption of the new Constitution-making process, and as a small contribution to that debate, I raised two specific points. One was: is this ‘new push’ really necessary at this point in time?

And the second was: is it really proper to ignore President Magufuli’s clearly stated position, namely that the matter of enacting a new Constitution of the United Republic is not one of his urgent priorities? But because of limited ‘editorial space’ which is normally allocated for this column, I could not exhaust all the points of my presentation. I have therefore decided to continue with the remaining points in today’s article. Is the ‘new push’ really necessary?

I will start by giving additional information, which supports my contention that on the basis of available records, it is quite clear that it is not only currently, but has in fact the established tradition, that there has always been minimal, that is to say, very little public interest, in this matter of making a new Constitution.

The available record that I am relying on here, include the Reports of all the past Presidential Commissions which investigated this matter in the past, including the Warioba Commission itself; which will be quoted later in the paragraphs below.

There is need to complete the new Katiba process. There is no dispute at all that the new Katiba (constitution) making process must eventually be completed at some stage. This is necessary because there remains only one single event in this process, namely that of adopting (or rejecting) the new Katiba through a referendum.

The Jukwaa la Katiba seems to argue that the resumed process should start with a re-consideration of the Katiba draft which was presented by the Warioba Commission in 2013. thus completely ignoring the work done by the Constituent to which the said Warioba draft was submitted for consideration, in accordance with the relevant law.

I think this is wrong. In my humble opinion, ignoring the sterling work which was carried out by the Constituent Assembly is totally unjustified, and actually dangerous; for the reason only that such action would, unjustifiably, protect only the interests of the minority, namely, the opposition members who unceremoniously walked out of the Constituent Assembly.

I am basing my opinion on the well-known principle of democracy, which provides that in all democratic decision-making processes, “the minority must be allowed to have their say, but the majority must have their way”

. In other words, because the Katiba draft which was published in October 2014 was properly adopted by the majority in the Constituent Assembly, it would be dangerous for democracy to ignore these results. And, even worse, be allowed to get away with it! That, I believe, would be wrong.

It is also falsely argued that the Constituent Assembly ignored and left out some basic provisions of the Warioba draft, and they mention, in particular, the leadership ethics provisions; and proceed to ague that these provisions should be re-introduced.

Such argument can only make sense to those who have no access to the two documents, namely the Warioba draft, together with the Constituent Assembly draft. For those of us who are in possession of both these documents, we can confidently attest to the falsity of such claims.

The leadership ethics. Provisions were carried over, and are clearly stated in Chapter Four of the Constituent Assembly draft.

It is however admitted that there in one ‘inconsequential’ Warioba Commission’s recommendation which was rejected by the Constituent Assembly; and that is the provision for the recall of a member of Parliament by his electors, at any time, before the expiry of the term of the relevant Parliament. I presume that this was rejected primarily because in practice, it cannot really work.

For example, there is evidence from the Constitution of the Republic of Uganda, wherein a similar provision was enthusiastically included in their 1995 new Constitution (article 84 thereof), which was enacted following the downfall of dictator President Iddi Amin Dada .

However, there is no record of this constitutional provision ever having been implemented. There is only one major recommendation which was rejected. In fact, and for very good reasons, there is only one basic recommendation of the Warioba draft was rejected, and does not appear in the Constituent Assembly draft. This is the recommendation for a three-government structure of the Union between Tanganyika and Zanzibar.

The reasons for the rejection of this recommendation are given here below. The history of past rejections of the three-government structure of the Union.

Available records show that the Warioba Commission’s recommendation of a three-government structure of the Union was the fifth in the series, having been preceded by four similar recommendations, each of which was made by a different authority, and at different times; but all of which were rejected. Hence, for those of us who know the history of this matter, there was no surprise at all when the Warioba recommendation was similarly rejected.

The previous recommendations were made by other Commissions similar to the Warioba Commission, but others were made by different authorities, as follows:- The first recommendation was made by the then President of Zanzibar and Vice- President of Tanzania, Mr. Aboud Jumbe, way back in 1984.

This was during the first phase Government of President Julius Nyerere. The second recommendation was made in 1991, by the Justice Nyalali Commission during the second phase Government of President Ali Hassan Mwinyi.

The third recommendation was made in 1993 by Parliament itself, also during President Ali Hassan Mwinyi’s second phase Government, when the Union Parliament adopted a motion formally sponsored by the G.55, calling for the establishment of a Government of Tanganyika within the Union, thus seeking to introduce a three-government structure of the Union.

The fourth recommendation was made by the Justice Kisanga Commission, which was appointed in 1998 by President Benjamin Mkapa of the third phase Government; Thus the most recent Warioba Commission’s recommendation, which was appointed by President Jakaya Kikwete of the fourth phase Government, was the fifth in this series.

The basic reasons for the rejection of these recommendations. There were two basic reasons which influenced the rejection of all the recommendations for the introduction of a three-government structure of the Union.

They are the following:- That they breach the original “Articles of Union”, which provided the foundation for the Union between Tanganyika and Zanzibar. That they arise only from small ‘interest groups’, and are not the genuine demands made by the majority of the people of Tanzania.

To these two factors, we can safely add ‘Mwalimu Nyerere’s dominant influence’ as the third factor. This is because, it is Mwalimu Nyerere’s dominant influence which led to the rejection in 1984, of Zanzibar President Aboud Jumbe’s recommendation for a three-government structure of the Union, which also led to his ‘forced’ resignation from all the offices he was holding at the material time.

Similarly, it was also Mwalimu Nyerere’s dominant influence which led to the failure, and abandonment, of the Bunge resolution of 1993, calling for the introduction of a Tanganyika government within the Union structure, which also led to the dismissal from office of Prime Minister John Malecela, and CCM Secretary- General Horace Kolimba in December 1994.

We can now look at the two basic reasons which are cited above, in greater detail. (1)The provisions of the ‘articles f Union’. Article (iv) of the “Articles of Union” makes the following provision:- “There shall be reserved for the Parliament and the Executive of the United Republic the following matters:-“ (The said matters are listed therein.

These are what became known as “Union Matters”). The said article goes on to make further provision as follows:- “And the said Parliament and Executive shall have exclusive authority in such matters throughout, and for the purpose of the United Republic.

And in addition, shall have exclusive authority in respect of all other matters in and for Tanganyika”. It is this provision of the ‘Articles of Union’ which introduced the ‘sacred’ (or ‘untouchable’) two-government structure of the Union.

(2)That these demands are made only by small’ interest groups’ The contention that the demand for the three-government structure of the Union has always been the work of small interest groups, and is really not the demand of the majority of Tanzanians; is fully supported by the figures provided by the various Commissions themselves, as is demonstrated here below:-

The Nyalali Commission’s Report (Kitabu cha kwanza, page 121) readily admits that: “Kuhusu ile hoja inayosema kwamba muundo wa serikali tatu unadaiwa na watu wachache tu, hoja hiyo ni ya kweli. Lakini tumezingatia kwamba katika kuamua mambo mazito ya kisiasa, siyo busara kuweka uzito mkubwa kwenye takwimu peke yake. “Kwa maoni yetu, mtazamo unaofaa zaidi katika suala la kisiasa kama hili, ni kupima uzito wa hoja yenyewe inayotolewa kuliko kuangalia wingi wa watu wanaoitoa. Tunafikiri kwamba hoja ya muundo wa Serikali tatu ina uzito wa kutosha, na haitakuwa ni busara kukataa hoja hiyo kwa kufuata mtazamo wa takwimu tu”.

In that short statement, the Nyalali Commission attempted to ignore the expressed views and opinions of the majority of Tanzanians, and attempted to advance its own interests, in the forlorn hope that this would be acceptable to the decision makers. That attempt failed. Next was the Kisanga Commission, whose Report, (Kitabu cha kwanza, page 43) also admits the truth that the majority of Tanzanians had rejected the three-government proposal. It reads as follows:- “Jedwali 1.1 linaonesha kwamba kwa upande wa Zanzibar, muundo unaopendelewa zaidi ni ule wa serikali mbili, ambapo asilimia 96.25 ya maoni yaliyotolewa yanapendelea muundo huo.

Muundo wa serikali tatu umependekezwa na asilimia 3.48 tu ya maoni yoteyaliyotolewa. “Na kwa upande wa Tanzania Bara, Jedwali na.1.2 linaonesha kwamba muundo unaopendelewa na wengi, vile vile ni ule wa Serikali mbili, ambapo asilimia 84.97 ya maoni yote yaliyotolewa, yanapendelea muundo huo. Muundo wa serikali tatu haukupendekezwa, ambapo maoni yaliyopendelea muundo huo yalikuwa ni ni asilimia 4.32 tu kati ya maoni yote yaliyotolewa. Jedwali 1.3 linaonesha kwamba kitaifa, muundo wa serikali mbili ndio unaopendwa zaidi (asilimia 88.27); ukufuatiwa na muundo wa serikali moja (6.54) ; na mwisho ni serikali tatu (4.32)”. And finally, the Warioba Commission Report which, on its part, gives the following figures in its “Kitabu cha Takwimu za ukusanyaji wa maoni ya Wananchi kuhusu mabadiliko ya Katiba”:- “Jumla ya maoni yote yaliyokusanywa na Tume hii katika nchi nzima, yaani Tanzania Bara na Zanzibar, yalikuwa ni 684, 303.

“Kwa upande wa Tanzania Bara, Jumla ya maoni yaliyotolewa kuhusu muundo wa Muungano, yalikuwa ni 26,625, au asilimia 3.9. Jumla ya maoni yaliyopendekeza muundo wa serikali moja, ilikuwa ni 3,564, sawa na asilimia 0.5. Jumla ya maoni yaliyopendekeza muundo wa serikali mbili, ilikuwa ni 6,459, sawa na asilimia 0.9.Jumla ya maoni yaliopendekeza muundo wa serikali tatu, ilikuwa ni 16,321, sawa na asilimia 2.4”. Kwa upande wa Zanzibar, “Jumla ya maoni yote yaliyokusanywa na Tume, ilikuwa ni 49,671. Jumla ya maoni yaliyotolewa kuhusu muundo wa Muungano, ilikuwa ni 19,351. Sawa na asilimia 39.0. Jumla ya maoni yaliyopendekeza muundo wa serikali moja, ilikuwa ni 25, sawa na asilimia 0.05. Jumla ya maoni yaliyopendekeza muundo wa serikali mbili, ilikuwa ni 6,693,sawa na asilimia 13,5 . Jumla ya maoni yaliyopedekeza muundo wa serikali tatu ilikuwa ni 960, sawa na asilimia 1.9; Jumla ya maoni yaliyopendekeza muundo wa serikali ya Mkataba, ilikuwa ni 11,659, sawa na asilimia 23.5. “.

These tiny minorities of Wananchi who prefer the three-government structure of the Union, should be sufficient testimony to the fact that the majority of Tanzanians, on both sides of the Union, are really not interested in the three-government structure proposal. And that is the main reason why the Constituent Assembly rejected that particular proposal of the Warioba Commission draft Constitution.

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