Thursday, 26 December 2013


Contentious issues in the structure of the Union still bite on the on-going writing of new Constitution, as the Constituent Assembly meetings approach.Worries among stakeholders are piling up on whether the new Constitution will make any sense without first addressing the issues concerning the Union between Tanganyika and Zanzibar
The noble task of establishing the new Constitution is still in progress with only three crucial stages remaining; preparation and presentation of a final report by the Constitutional Review Commission (CRC) to the President, formation and convening of the Constituent Assembly and the referendum. These stages are not only crucial, but they are also very important because they are final and decisive factors for the whole process of getting or failing to get the new Constitution.

However, there are signals on both the composition of the Constituent Assembly and its debate thereof that may make the whole institution irrelevant even before it begins its work. In this article I will explain why the exclusion of members of the CRC in the Constituent Assembly will make it irrelevant and undone.
While the CRC has remained with only a few days to present its report to the President after the latter has granted the former one more month up to December 15, last week the National Assembly in its ordinary meeting in Dodoma made slight amendments in the Constitutional Review Act, Chapter 83 of the Laws (R.E 2012) and came out with a strong stand that the CRC will not be allowed to be part or even sit around the Constituent Assembly when the latter begins work of debating the Draft Constitution next year.
The decision of the National Assembly to reject the presence of the CRC contrary to what is provided in the Constitutional Review Act, 2011 (R.E 2012) in section 20(4), has finally removed the possibility of the CRC being included in the Constituent Assembly to give clarification which would be required by members of Constituent Assembly during the debate.

This legal act of leaving out the CRC in Constituent Assembly has astonished many stakeholders in constitution making process and the general public with the exception of ruling party-CCM only. From interpretation of section 20(4) of the above mentioned law, no one fore-thought that CRC would be excluded during the debate of Draft constitution in Constituent Assembly, highly taking into account that CRC is one of the major actors in the whole process of making the Constitution and it is the one that made all literary work of the intended Constitution possible.
Section 20(4) provides that: “For the purpose of subsection (3), the chairman and members of the Commission may give clarification which may be required during the debate by the Constituent Assembly”.
Logically, and within the standard interpretation of the law, that above provision justifies the presence of the CRC in the Constituent Assembly in which its chairman and members would be required (if need be) to give clarification during the debate. Nevertheless, the provision does not mean that the presence of the CRC in the Constituent Assembly is not necessary.The usage of the word “may” is not about whether members of the CRC are to be part of the Constituent Assembly or not, rather it clearly allows the members of the CRC to take part of the Constituent Assembly and also it gives members of the Constituent Assembly freedom to seek clarification from those of the CRC during the debate.

The rationale of this provision is that, during the debate members of the Constituent Assembly may need clarification on any part of the Draft Constitution or the recommendations of the CRC and that the chairman or any member of the CRC would give that clarification and, therefore, make the whole debate smooth and conducive. Thus, amendments of the law to exclude the members of the CRC who we logically assume they know each letter of both the Draft Constitution and its report signals a bad motive of both the government and the ruling party in passing such amendments of the law and that predicts ill-will of CCM and its government in giving Tanzanians a Constitution that can be named as a people -centred Constitution.To my legal knowledge I do not agree with the amendments of the law that prohibit members of the CRC to take part in the Constituent Assembly as prescribed by section 20(4).

Thus, the amendment of the law itself reveals a motive behind the CCM agenda during the debate in the Constituent Assembly. Now, members of the CRC will not take part in the Constituent Assembly, who will be giving clarifications to the members of the Constituent Assembly in case such need arises? Why is the government and CCM afraid of the presence of members of the CRC in the Constituent Assembly? There must be something fishy here!.The life of the CRC as per the law was supposed to come to end upon the declaration of the results of the referendum by the National Electoral Commission as per section 37(1) of the law establishing it.If the existence of the Commission will remain after the referendum and now it has been prohibited to participate in the Constituent Assembly, what will the CRC be doing up to that time? Furthermore, the CRC as per section 33(2) of the law establishing it was supposed to sensitise people on the awareness on the referendum of the proposed Constitution.

These other two legal functions of the CRC justify its active role throughout until after the referendum. Thus, the short-lived CRC, that makes it to prematurely end its significant role, puts a red dot in remaining stages of the process of constitution making.The second point that may make our Constituent Assembly irrelevant is the majority of CCM members who will have one task to do and that is to ensure that the structure and contents of the proposed constitution become their ownership instead of all Tanzanians.

We still do not know yet what are the final recommendations of the CRC will be, but we know that Members of Parliament are all members of the Constituent Assembly, CCM will be the major player of the game. Members of the opposition led by Chama cha Demokrasia na Maendeleo (Chadema) are the minority, but we cannot ignore their line of argument, especially when it comes to debate on the structure of the Union.

The role that will be played by 200 additional members in the Constituent Assembly is unpredictable; perhaps will help to balance the political interests of parties.Definitely if wisdom does not prevail, the tag of war will erupt between the parties, each one politically pulling things on their side irrespective of national interests. This for quite a long time has been a culture of our National Assembly and no doubt the same will feature again during the coming debate in the Constituent Assembly.All in all, CCM and its government through the Constituent Assembly are the ones who will determine the kind of the proposed Constitution. Let us pray for them to be led by the spirit of wisdom and understanding.

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