Constitution making process in Tanzania

…….students in tertiary institutions shower praises to judge (rtd) Joseph Warioba – By Elias Mhegera – Nation’s attention focused to Dodoma  – While the Constituent Assembly (CA) in Dodoma has been adjourned for a while so as to allow its members to go for Easter holidays, the chairman of the now defunct Constitutional Review Commission (CRC) Judge (rtd) Joseph Warioba will be one person to breathe in a sigh of relief to the maximum of enjoyment.

Mr Irenei Kiria reading a joint statement on behalf of the CSOs, on his right partly hidden is Onesmo Olengurumwa Coordinator of the Tanzania Human Rights Defenders Coalition (THRDC)

Mr Irenei Kiria reading a joint statement on behalf of the CSOs, on his right partly hidden is Onesmo Olengurumwa Coordinator of the Tanzania Human Rights Defenders Coalition (THRDC)

Deus Kibamba chairman of the Constitutional Forum   is emphasizing a point during the same meeting at the LHRC.

Deus Kibamba chairman of the Constitutional Forum is emphasizing a point during the same meeting at the LHRC.

Mr Humphrey Polepole former commissioner of the CRC presenting a paper on the constitutional process, on his left is Mr Richard Shaba-Team Leader KAS

Mr Humphrey Polepole former commissioner of the CRC presenting a paper on the constitutional process, on his left is Mr Richard Shaba-Team Leader KAS

Kudra Abbas Garula a student at the Mwalimu Nyerere Memorial Academy asking what will  be the fate of the Union if Tanganyika was to re-emerge

Kudra Abbas Garula a student at the Mwalimu Nyerere Memorial Academy asking what will be the fate of the Union if Tanganyika was to re-emerge

Mesaya Ismail a student from the UDSM- wanted to know on the right for prisoners to vote, he was annoyed by the fussy going on in Dodoma.

Mesaya Ismail a student from the UDSM- wanted to know on the right for prisoners to vote, he was annoyed by the fussy going on in Dodoma.

in the photograph listening attentively are students from tertiary institutions of higher education. All photos by the courtesy of KAS

in the photograph listening attentively are students from tertiary institutions of higher education. All photos by the courtesy of KAS

in the photograph listening attentively are students from tertiary institutions of higher education. All photos by the courtesy of KAS

in the photograph listening attentively are students from tertiary institutions of higher education. All photos by the courtesy of KAS

This is after hearing good news from students from tertiary institutions and many other analysts who have come strongly in defense of his team’s draft constitution. This is contrary to what the President of the United Republic of Tanzania (URT) Jakaya Kikwete had done when addressing the CA in Dodoma, central Tanzania.

In March 21, 2014 the Head of State shifted positions from that of the President of the URT to that of the chairman of the ruling Chama Cha Mapinduzi (CCM), which he dubs as top leader in the rank of chairman. He pounded heavily on the Constitutional Review Commission (CRC) retired Premier and Judge, Joseph Warioba whose commission had suggested a three-tier Union.

This act was once done by his immediate predecessor, Former President Benjamin Mkapa in 1998 when retired judge Robert Kisanga had suggested for a three-tier Government structure. Then Head of State was vehement and he even lost temper while discarding Judge Kisanga’s Commission findings that his team had gone beyond the terms of reference.

Earlier  in 1992 former Chief Justice Francis Nyalali had suggested the same, the three-tier structure but the President Ali Hassan Mwinyi was diplomatic enough not to throw any insults to the now deceased Nyalali, although he equally chose to ignore this suggestion but allowed Tanzania to re-introduce multiparty politics in the same year.

In 1984 the Zanzibar’s President Aboud Jumbe who was as well the First Vice President of the URT was forced into a resignation after he had suggested for a three tier structure. He was working under the founding of Tanzania Julius Nyerere who was to voluntarily retire one year later.

At least this has been the brief history of the Union that is now in ten blink of the collapse. This is because Zanzibar came up with its own constitution in 2010 which declares in terms of its sovereignty, which Warioba and his team saw as a main threat to the 50 years Union.

Therefore the suggestion for three-tier was an attempt to retain this union which has gone on with a lot of unsettled nuisances. After Kikwete’s speech there have been a lot of commotions in the CA between two camps, the CCM which supports a two-tier structure and the opposition parties which supports a three-tier structure.

Already representative of three opposition parties namely Chama cha Demokrasia na Maendeleo (CHADEMA), the Civic United Front, and the National Convention for Construction and Reforms (NCCR-Mageuzi) have decided to walk out of the CA promising not to come back in the House.

Their main claims is that they are being bulldozed by the CCM for its interests in the constitution through what analysts have termed as a “tyranny of numbers” since CCM members of the CA forms the majority in the House.

The opposition had earlier formed what it called Umoja wa Katiba ya Wananchi (UKAWA) which can simply be translated as convention of the people’s constitution. But while this is the situation in Dodoma voices in support of the CRC under Warioba have been voiced in so many places.

Strong utterances were made during a one day symposium at the Landmark Hotel in Ubungo on Wednesday this week (April 16, 2014) which was organized in collaboration of the Konrad Adenauer-Stiftung (KAS) and Tanzanian Students Networking Programme (TSNP).

Welcoming the 60 + students at the hall was Alphonce Lusako, Secretary General of the TSNP who said that the role o students is vital in transforming the Tanzanian society and that students have been spending so much time in searching for allowances but they are lagging far behind in the constitutional  making process.

Team leader at the KAS, Richard Shaba discussed the vital role of providing leadership skills that his organization has done since 1964, starting from the Kivukoni College which groomed leaders who maintained ethics and leadership etiquettes but now this is no longer the case with many leaders.

Mr. Shaba said prolonged arguments in Dodoma which have made the Constituent Assembly (CA) to fail to adhere to the scheduled time frame are not based in constructive assessments but rather ideological affiliations.

“I am sad that today violations against the constitution are prevailing so much but previously there were guardians of this constitution as Mwalimu Julius Nyerere did in 1994”. He remarked

He was referring an incident when Ali Hassan Mwinyi then President of the United Republic of Tanzania had allowed Zanzibar under then President Salmin Amour to join the Organization of Islamic Conference (OIC) without prior consultation to the Mainland or the Union Government.

He narrated further that one of the gross violations that has been going on in Tanzania is extrajudicial killings which have been conducted by the law enforcers. He critiqued that in many instances the state has failed many times to guarantee safety of Tanzanians living abroad.

Former Commissioner of the CRC speaks out

For his part the member of the now defunct CRC Humphrey Polepole said that his Commission did a good work in researching and showing dedication to this nation, but he was worried that this document is to be hijacked for certain political interests.

“I call for you the youths of this country to be prepared to defend this nation from corrupt motives. It is true that far way back in 1964 Tanganyika and Zanzibar had equal national status including two chairs in the United Nations and they decided to unite, but I am questioning the motives behind this massive pressure in support of the two-tier Government,” he hinted.

He cherished that the unification process in 1964 came out of the good will between Nyerere and Abeid Karume the slain former leader of Zanzibar. He advanced that the theory was based in a motive to have a strong and united nation in Tanzania that could become more vibrant in the international fora. Moreover Polepole said that Zanzibar constitutes a blend of people from various backgrounds and many are from Mainland Tanzania.

He further narrated that after the Zanzibar independence in 1963 there was a dominance of the Arab through the sultan that was in power. He therefore reveals to the attentive youngsters that there was a fear of a counter coup after the 1964 upsurge that is why Karume sought for unification so; the main concern was security of Zanzibar in the light of a deposed sultan.

“While in the mainland Tanzania (Tanganyika), also Nyerere was concerned of structures of the union namely, whether it should be a unitary, federal or a confederation, but time was not in his side so the motive of guaranteeing security to Zanzibar reined high than the form of the union, at least in those formative years”, commented Polepole.

Implicitly this former commissioner of the CRC wanted to say that the nature of the union that has gone along with so many nuisances needs to be revisited in order to reflect the current international system that is not characterized by cold war, and even to remind that the threats of a counter coup are nonexistent.

For instance, he said, Cameroon had two nations previously of the French and British Cameroon which formed the current Cameroon.  Even Egypt and Syria had once formed a union which later collapsed.

“We should know the fact that Nyerere had retained some colonial Government functionaries that is why these had to be consulted on the nature of the union in its formative years. So the British model was borrowed” he disclosed.

Polepole said that implicitly, Tanzania had assumed a federal structure but under the union name which could appear as unitary in formation. He suggested that probably what could have befitted in the name was con-federal since these two nations had chosen to unite in some few areas but retain their autonomies in many other areas.


The current Union under scrutiny

He critiqued the current nature of the Union whereby the President of the United Republic of Tanzania cannot even discuss on issues like health or even infrastructure and for that matter even the Minister for Works of the United Republic of Tanzania cannot extend his jurisdiction in Zanzibar.

He highlighted that the High Court of Tanzania cannot resolve Zanzibar issues as according to the Zanzibar constitution of 2010. He also raised a concern that the point of departure started in 1984 where now the name Tanzania isles now became Tanzania Zanzibar.

He discussed on issues like ports and aviation whereby Zanzibar has never recognized the Tanzania Aviation Authority and even the National Examination Council and even the Tanzania Bureau of Standards whereby Zanzibar has its own similar body.

He further urged that one of the things which had affected the political oligarchy is the fact that the CRC had provided for ethics to the leaders. He also narrated that the three-tier structure was not escapable due to the prevailing circumstances.

But also there was a concern from the isles whereby the formation of the most Supreme Court so that all the High Court of Tanzania and that of Zanzibar could be subservient to the Supreme Court of Tanzania.

But students’ concerns were even clearer during the question and answers session.  Mr Chacha Hatari who claimed that he is unemployed after having graduated for the University of Dar es Salaam (UDSM) asked what was to follow if the two-tier structure of the Union was to be passed in the CA, what will follow? As long as the draft constitution was designed for three tier government.

While Daniel Msolwa a student at the UDSM also raised a concern on the same question if it will be two tier governments what will happen. In response to these questions, Mr Polepole argued that the existence of Zanzibar as an independent entity in the Union structure will deny mainlanders opportunity to decide their fates, while their colleagues from the isles are enjoying this as in accordance with the 2010 Zanzibar’s Constitution.

For his part Kudra Abbas Garula a student at the Mwalimu Nyerere Memorial Academy- asked if at all Tanganyika is to come back will the Union then prevail? In response Polepole said that the re-emergence of Tanganyika was not a big deal as such.

 But some of the provisions were reducing the power of the president in order to enshrine good performance to the best of this nation that is why there is too much commotions which are fueled albeit covertly by some politicians with strong ambitions of becoming future presidents of this country. 

He said that in the USA this has been a common practice to the extent that the parliament has been very supreme than the president but in Tanzania the president is supreme. He said that the CRC had provided more strength to the parliament.

He also gave reasons as to why a single government is impossible. Because the existence of Zanzibar must prevail, this then gave a chance for the CRC to discuss on the efficacy of two or three-tier government. He reminded that the Warioba Commission had even suggested that the Union cannot be broken except for the referendum.

Mesaya Ismail also a student from the UDSMwanted to know on the right for prisoners to vote, and that primary education should go up to form four.

But he was worried as to whether the new constitution will be formulated due to ideological inclinations; he gave an example that this is what made Kikwete to present his speech as a CCM cadre during his opening speech in Dodoma recently.

This stance was immediately supported by Michael Legan from the UDSM, he said that he was shocked by President Kikwete’s speech and wanted to know what had caused this change of attitude? Because previously the Head of State had approved the two drafts and has praised the CRC for its good work.

Another student who contributed in the debate was Mr Ado Shaibu from the UDSM –Law School, he said that the structure of the Union itself is not a big deal in maintaining the Union, but systems which have been prepared to protect it. He suggested that sources of the income for the existence of the Union are very important if the Union was to be institutionalized.

Polepole defended his team of the CRC by saying that it had used a purposeful approach by looking at how harmony is maintained between the two sides of the Union.

He as well condemned threats that were made recently by one Minister that this country will be plunged into a war if this country was to allow a three tier government of the re-emergence of Tanganyika.

“I count this is an alert to the soldiers that they should be prepared to take power if any other party was to take power, or that it should use force to crush any movement which is against the status quo which supports the two tier-government structure vehemently”. He recounted.

One Ms Anne-Maria Kobelo-from St. Joseph College of Engineering and Technology suggested that the new constitution guarantees security of the marginalized group including their education and other life opportunities.

While Gabriel Emmanuel, UDSM student suggested that the best form of the Union should be a single government rather than two or three.  But Kija Kimbu from St Joseph was inquisitive as to why the CRC was not allowed to discuss whether the Union should prevail or not.

Commenting to these stances Polepole said that the draft constitution had maintained all groups including the marginalized ones, and that it is difficult to have a single government because Zanzibar due to its size would like to retain its identity.


Eventually students came up with resolutions that the members of the CA, should be told by the community members at large that what is going on is wastage of time and resources because there a lot of counterproductive arguments.

However, students commended the Warioba Commission for its good job and that eventually it came up with a good document. But they critiqued the CA that it has been overtaken by emotions, and allegations of corruption. They critiqued the process of getting members of the CA that ministers and MPs from the constituencies should have not been used for this purpose.

What next?

There was a call that students from tertiary institutions should register and vote during elections and that all kind of education that they get in any manner should be replicated to the societies at large.

That the CA is now using time adversely, and lavish expenditures of money and that a good number of the available experts are used to fulfill political ambitions implicitly in favour of the ruling Chama Cha Mapinduzi. They condemned unwarranted threats intimidations and bribes

Also they reminded members of the CA, that youngsters have been sidelined in so many ways, so they promised to do what the founding father of this nation Mwalimu Nyerere did at his early youth hood. That the youths should help their colleagues who have lost a sense of direction to become alcoholic and drug users to come back on the track as good citizens

Again the youngsters commended the Warioba commission and that it managed to capture ideas from a big section of the Tanzanians population. They condemned the focus on the formation of the union that has taken a confrontational stance and forgot other core national values. Hence noting that Ideological affiliation could destroy the prospects of the best document as it was anticipated.

They said that all youths should educate their cohorts on the importance of voting when it comes into voting also to use properly social media, face-book, twitter blogs and social networks like jamii forum, wanabidii, wanamabadiliko etc.

They said that the vote based on tyranny of numbers won’t bring a peoples constitution after having heard utterances which are being aired every now and then and that youths won’t allow this project to be hijacked and that soon after a new constitution, if it will not represent the people’s wishes at large they will launch a new movement for the same purpose of getting a people’s document.

Analysts in many circles have criticized the conduct of the process to get a new constitution on grounds that there was a serious mistake to allow politicians to hijack the process because it was definite that by allowing all parliamentarians’ to be part of this process there will be a “tyranny of numbers”.

As it was speculated the tug of war in the formaulation of the new constitution has mainly centre on ideological affiliations sidelining other important stakeholders. Already the coalitions of the civil society on the constitution formulation and religious leaders have issues statements condemning the usurpation of the process by politicians and many other irregularities.

Religious leaders

For its part, the Interreligious Council for Peace Tanzania (IRCPT) issued a statement in spirit of rectifying the CA in Dodoma. This statement was of the representatives of different Faith   Based   Organizations   (FBOs), namely the Muslim Council of Tanzania (BAKWATA), the Christian Council of Tanzania (CCT), and the Pentecostal Churches of Tanzania (PCT).

Others are the Tanzania Asian Development Association (TADA), Tanzania Episcopal Conference (TEC), Tanzania Muslims Professionals Association (TAMPRO), Baha’s  Faith;  Ahmadiyya Jamaat, Buddhist Community,  Shia Ithnaasheri Community, and the Dar es Salaam Christian Women Wing.

Their statement followed the meetings of the representatives of these bodies on the 26th Day of March in 2014 under the auspices of Interreligious Council for Peace Tanzania (IRCPT) in collaboration with KAS to discuss and analyze the Draft Constitution.

Suggestions to be taken on board on the Constitution Draft includes adherence to the national values: dignity, patriotism, integrity, unity, transparency, accountability and the national language should be adhered to.

They sought for the improvement of Article 79 on qualifications for the presidential candidate to include the aspirant being married as one of the qualifications. Also they suggested that the Constitution should specify that marriage is between a man and a woman.

Moreover these servants of God suggested that there should be a commission to track regularly the implementation of the Commission.  They also suggested that the        Constitution        should acknowledge the presence of God, and provide guidance on the equitable use of the national resources and tax collection.

They called for the Preventing and Combating Corruption   Bureau (PCCB), in the   list   of   accountability institutions, and that the Constitution should declare that the right to live begins when a child is conceived

They suggested this document to    declare that the right to health is a basic right to each citizen regardless of orientation, economic or social status. There was a call to ensure that any   agreement or relationship between a member state to the Union    and   any   third   party; should ensure the Union is not compromised in any way

And that in order to enhance accountability, the out-going president should no longer enjoy immunity to prosecution after leaving the office.

That the Constitution should strictly observe separation of powers between the three pillars: Legislative, Executive and Judiciary (e.g. Nomination of 5 Special Members of Parliament should not be done by the His Excellency the President; the attempts to justify

Furthermore it was suggested that any leader who has been dismissed or  forced  to  resign after  being proven to be in violation of leadership ethics; should neither be ever appointed to any leadership position nor be ever nominated to a leadership position

The Constitution should recognize the role to be played by a council of religious leaders and other community elders in advising the government on legislation, social and other sensitive national issues

That the Ethics Commission shall have the obligation to provide proof of integrity of any leader lined-up for election or nomination before other processes take-off.

In recognition  of the good work done by the Presidential Commission on Constitution Reform headed by Judge Joseph Sinde Warioba, and being mindful of the importance of the constitution in the day-to-day life of the people of Tanzania and; considering the huge cost involved in the whole process of writing a new constitution right from the beginning and;

Observing the  existence of politically aligned and politically manipulated debates, strong ideological based positions – at times in  disregard of  the  very standing  orders/ regulations agreed and passed by the same Constituent Assembly Members and;

Being aware of the expectations and intentions of Tanzanians to obtain a new constitution which shall be the beacon for the nation, and shall provide guidance in creation of God- fearing upright leaders who shall serve the people with humility, love and accountability; members of the IRCPT had this resolutions:

The     Constituent     Assembly Members should honour the Draft Constitution     and   should   work towards improving it with the view to obtain the proposed constitution bearing in mind that the draft is the reflection of the opinion of the people.

That the Constituent Assembly Members should fear God and this enable them to make decisions which shall be in tandem with the expectations of the people thus making the nation more productive.

A call from the civil society organizations

But while this was going the coalitions and networks of civil society organizations came up with a bold and strong statement in condemnation of the state machination of the Constituent Assembly.

Reading a statement on behalf of more than 500 Non Governmental Organizations (NGOs) dealing with human rights in various forms at the Legal and Human Rights Centre (LHRC), on Thursday this week was an ad hoc chairman of this umbrella body Mr Irenei Kiria, the Executive Director of Sikika an NGO dealing with health rights.

“While we are lauding President Kikwete for blessing the Constitution initiative but he erred in showing a biased approach based on ideological affiliation during his presentation” remarked Kiria.

He was supported by the LHRC Executive Director Dr Helen Kijo-Bisimba, Mr Deus Kibamba who is the chairman of the Constitutional Forum, and Mr Israel Ilunde the Executive Director, Youth Partnership Countrywide (YPC)  from Kibaha, Coast Region.

In general the CSOs condemned the usurpation of the constitution process, the closing of the CRC website, segregation and insults in the ongoing CA in Dodoma. The as well critiques President Kiwete’s speech during the opening of the CA and they were categorical that it has contributed a lot to the ongoing commotions in the House.