Last week, we all joyfully celebrated the golden jubilee of our country’s independence. And for the greater part of the period leading to these celebrations; the mass and the social media appropriately gave us the opportunity to hear, read or watch, the various accounts of the impressive performance of the various social and economic sectors during this post-independence period.
By the grace of God, I had the very good fortune of being in the top leadership positions, (both in the ruling party and in the government) during the whole of this period, and mainly operating in areas which are either related to, or closely connected with, the country’s political and constitutional development. Actually, the achievement of independence was itself a result of constitutional developments initiated and implemented by the colonial Administration. Hence, I believe that the story of the country’s post-independence constitutional development is also worth telling. And that is the subject matter of today’s article.
The political system that was inherited at the time of Tanganyika’s independence on 9th December, 1961 was the multi-party system; and this was the case in practically all other countries in Africa and elsewhere, which gained their independence from Britain at that time.
However, despite the fact that Tanganyika had a amulti-party constitution, the country was, in practice, a de facto ‘one party’ state, since there was only one political party, TANU, which was represented in Parliament, as a result of TANU having won all the parliamentary seats in the pre-independence general election of 1960; a factor which partly influenced Mwalimu Nyerere in his decision to initiate the fundamental change to the “one-party” constitution, which was enacted in 1965.
Defining the Constitution.
I believe it is helpful, in discussing this matter of “constitutional development” ,to start wth a definition of the word “constitution”. A country’s Cpstitution is normally defined as the “basic or fundamental law of the country, which establishes three pillars of State governance, namely the Executive; the Legislative; and the Judicial Branches of Government; it describes the functions of each of those institutions; and provides for the distribution of powers among them, as well as the relations between them”.
It is, however, important to note and appreciate, that there is a fundamental difference between the constitution as the basic law of the country, and the other ordinary laws of the land, which establish the specific principles and methods to be used by these constitutional basic institutions of state governance in the process of implementing their functions and responsibilities; and which also, generally control any errant behavior amounting to a breach of the law, by the individual citizens (and other residents) of the relevant State
Thus, because of this fundamental difference, it is vitally important to also note and appreciate, that there are very many areas in which the constitution cannot be applied in order to rectify the kind of problems which have often been mentioned in the demands for a new constitution; such as that for a new constitution which will establish an “independent” electoral commission. Obviously in the false belief that a new constitution will achieve this objective!
By the grace of God, I had the very good fortune of being in the top leadership positions, (both in the ruling party and in the government) during the whole of this period, and mainly operating in areas which are either related to, or closely connected with, the country’s political and constitutional development. Actually, the achievement of independence was itself a result of constitutional developments initiated and implemented by the colonial Administration. Hence, I believe that the story of the country’s post-independence constitutional development is also worth telling. And that is the subject matter of today’s article.
The political system that was inherited at the time of Tanganyika’s independence on 9th December, 1961 was the multi-party system; and this was the case in practically all other countries in Africa and elsewhere, which gained their independence from Britain at that time.
However, despite the fact that Tanganyika had a amulti-party constitution, the country was, in practice, a de facto ‘one party’ state, since there was only one political party, TANU, which was represented in Parliament, as a result of TANU having won all the parliamentary seats in the pre-independence general election of 1960; a factor which partly influenced Mwalimu Nyerere in his decision to initiate the fundamental change to the “one-party” constitution, which was enacted in 1965.
Defining the Constitution.
I believe it is helpful, in discussing this matter of “constitutional development” ,to start wth a definition of the word “constitution”. A country’s Cpstitution is normally defined as the “basic or fundamental law of the country, which establishes three pillars of State governance, namely the Executive; the Legislative; and the Judicial Branches of Government; it describes the functions of each of those institutions; and provides for the distribution of powers among them, as well as the relations between them”.
It is, however, important to note and appreciate, that there is a fundamental difference between the constitution as the basic law of the country, and the other ordinary laws of the land, which establish the specific principles and methods to be used by these constitutional basic institutions of state governance in the process of implementing their functions and responsibilities; and which also, generally control any errant behavior amounting to a breach of the law, by the individual citizens (and other residents) of the relevant State
Thus, because of this fundamental difference, it is vitally important to also note and appreciate, that there are very many areas in which the constitution cannot be applied in order to rectify the kind of problems which have often been mentioned in the demands for a new constitution; such as that for a new constitution which will establish an “independent” electoral commission. Obviously in the false belief that a new constitution will achieve this objective!
Such expectations are palpably false; simply because, although the constitution does indeed establish an Electoral Commission; but, athough the constitution of the United Republic of Tanzania, 1977 duly establishes such a commission in its article 74 (7)); but the constitution itself cannot possibly make provision for the commission’s genuine “independence”; as this will depend amost ntirely on the ethics of the appointed commissioners themselves.
The Constitution may, indeed, be clothed in the desired words, by providing that “there shall be an Independent Electoral Commission which shall be independent in the performance of its functions” or words to that effect. And such provision actually appears in article 74 (7) of the current Constitution of the United Republic of Tanzania, 1977. But, in reality, mainly because constitutions are operated by human beings, such provisions can still be effectively frustrated by ‘bad leaders’ who may happen to be in charge of affairs at the material time; as has indeed happened on a number of occasions in the Zanzibar general elections, when the Electoral commission Chairman announced questionable decisions which immediately created huge problems of political conflict and general insecurity. This is just one example which shows that the good intentions of a written constitution can still be frustrated by unethical leaders.
‘Constitution making’ versus ‘constitutional amendment’.
It is similarly and equally important, to also note and appreciate the differences in the meanings of these concepts, and the different parliamentary procedures that are used in enacting them.
The term “Constitution making” means the enactment of a completely new constitution; whereas “constitutional amendment” means the changing only of only some of the provisions of the existing constitution. Under normal circumstances, a new constitution is enacted only upon the occurrence of any of the following events:- (a) where there is a change of sovereignty, such as upon the attainment of a country’s independence;
The Constitution may, indeed, be clothed in the desired words, by providing that “there shall be an Independent Electoral Commission which shall be independent in the performance of its functions” or words to that effect. And such provision actually appears in article 74 (7) of the current Constitution of the United Republic of Tanzania, 1977. But, in reality, mainly because constitutions are operated by human beings, such provisions can still be effectively frustrated by ‘bad leaders’ who may happen to be in charge of affairs at the material time; as has indeed happened on a number of occasions in the Zanzibar general elections, when the Electoral commission Chairman announced questionable decisions which immediately created huge problems of political conflict and general insecurity. This is just one example which shows that the good intentions of a written constitution can still be frustrated by unethical leaders.
‘Constitution making’ versus ‘constitutional amendment’.
It is similarly and equally important, to also note and appreciate the differences in the meanings of these concepts, and the different parliamentary procedures that are used in enacting them.
The term “Constitution making” means the enactment of a completely new constitution; whereas “constitutional amendment” means the changing only of only some of the provisions of the existing constitution. Under normal circumstances, a new constitution is enacted only upon the occurrence of any of the following events:- (a) where there is a change of sovereignty, such as upon the attainment of a country’s independence;
(b) where there is a merger of sovereignty, such as when the Republic of Tanganyika united with the Peoples’ Republic of Zanzibar to form the United Republic of Tanzania; (c) where the previous constitution was abrogated by a dictatorial regime, such as happened in Uganda after the defeat of dictator President Iddi Amin Dada; (d) where it is necessary to replace a totally unacceptable constitution which was enacted by an oppressive regime, such as that of South Africa during the obnoxious apartheid regime.
The established parliamentary procedures provide that a ‘ new constitution’ can only be enacted by a special body known as a “Constituent Assembly”; and it does not need the Assent of the Head of State in order to become effective. The ‘constitutional amendments’ are made by the ordinary Parliament; which, however, must follow a special procedures. And it has been standard practice, that in the absence of the above mentioned circumstances, amendments have been introduced to the existing constitution in order to accommodate the new political developments that have taken place; as was done at the time of the transition from the one-party political system to multi-party politics in 1992. This is the procedure which has been followed by many other countries, including the United States of America, and the Union Republic of India; both of which have retained the original constitutions which were enacted at the time of their independence: (1787 in the case of USA; and 1947 in the case of India); to which they have, from time to time, introduced amendments, in order to satisfy the needs and requirements of the relevant periods.
The legal sanctity of the constitution.
In this context, the word “sanctity” does not refer to those matters that are connected with God, or considered to be holy. It only mean “ something which is regarded with great respect”.
And this is what explains why the ‘legal environment of sanctity’ has been created around this document designated as “the Constitution”, in order to attract maximum respectfrom the citizens of the relevant jurisdiction. And it is precisely for that reason, the constitution is strictly limited to making provision for the establishment of the “pillars of State governance” mentioned above, plus a select few other government institutions which are closely associated with the objective of good governance; such as: the Commission for Human rights and good governance; the Secretariat for the administration of leadership code of ethics; the national Army; and the Local Authority Institutions. These are the inherent characteristics of all constitutions, worldwide.
The established parliamentary procedures provide that a ‘ new constitution’ can only be enacted by a special body known as a “Constituent Assembly”; and it does not need the Assent of the Head of State in order to become effective. The ‘constitutional amendments’ are made by the ordinary Parliament; which, however, must follow a special procedures. And it has been standard practice, that in the absence of the above mentioned circumstances, amendments have been introduced to the existing constitution in order to accommodate the new political developments that have taken place; as was done at the time of the transition from the one-party political system to multi-party politics in 1992. This is the procedure which has been followed by many other countries, including the United States of America, and the Union Republic of India; both of which have retained the original constitutions which were enacted at the time of their independence: (1787 in the case of USA; and 1947 in the case of India); to which they have, from time to time, introduced amendments, in order to satisfy the needs and requirements of the relevant periods.
The legal sanctity of the constitution.
In this context, the word “sanctity” does not refer to those matters that are connected with God, or considered to be holy. It only mean “ something which is regarded with great respect”.
And this is what explains why the ‘legal environment of sanctity’ has been created around this document designated as “the Constitution”, in order to attract maximum respectfrom the citizens of the relevant jurisdiction. And it is precisely for that reason, the constitution is strictly limited to making provision for the establishment of the “pillars of State governance” mentioned above, plus a select few other government institutions which are closely associated with the objective of good governance; such as: the Commission for Human rights and good governance; the Secretariat for the administration of leadership code of ethics; the national Army; and the Local Authority Institutions. These are the inherent characteristics of all constitutions, worldwide.
The driving factors for constitutional reform.
Constitutions are made, and from time to time amended, in response to certain specified major political events or occurrences. Such occurrences are what I have referred to as the ‘driving factors’ for constitutional reform.
My own personal experience of the processes of ‘constitution making’ and ‘constitutional amendment’ in Tanzania, shows that the basic driving factor for constitutional reform, has always been the political ‘needs and requirements’ of the relevant period. For example, the making of the Tanganyika Republican Constitution of 1962, was driven solely by the obvious need to discard the “Dominion constitutional status” which was bequeathed to us by the departing colonial Administration, under which the Queen of England had continued to be the Head of State of independent Tanganyika! The Republican constitution effectively removed that strange anomaly .
The subsequent constitutional reforms were similarly driven by the ‘needs and requirements’ of the relevant period. The enactment of the “One-party” State Constitution of 1965, was driven primarily by the strong “wind of change” which blew across the African continent at that material time; and brought about the adoption of the ‘single-party” political system by almost all the countries of Africa; and the same strong “wind of change” is what facilitated the return by all these countries, to the multi-party constitutional political system. The enactment of the “interim constitution of the United Republic of Tanganyika and Zanzibar” of 1964; was driven by the ‘needs and requirements’ of that material time, which were to make the necessary constitutional provisions for the newly created state. And the making of the current constitution of Tanzania of 1977, was driven by the ‘needs and requirements’ of that period, which were to create a ‘permanent’ constitution for the country, which would replace the “interim Constitution” of 1964.
Constitutional amendments are similarly driven by the same factors.
Fourteen amendments have so far been made to the Constitution of the United Republic of Tanzania, 1977; and they have all been driven by the same factor; namely, “the needs and requirements of the relevant period”. Such amendments were also made mostly in response to the ‘needs and requirements’ of the relevant period. For example, in 1984, Parliament made a number of major, significant amendments to the Constitution in response to the directives which had been issued by the National Executive Committee of the ruling party (CCM}; which was constitutionally mandated to make such decisions relating to the political needs and requirements of the moment, under the doctrine of “Party supremacy” which was in operation at that material time.
Thepersistent demands for ‘a new constitution’.
Indeed, right from the time of the reintroduction of multi-party politics, and especially following the first multi-party general election of 1995; demands for the enactment of a new constitution of the United republic have been persistently made by the opposition parties,, supported by other interested stakeholders. Thus, In response to these demands President Kikwete, during his second term in office, commendably instituted the constitution making process which culminated in the enactment, by the Constituent Assembly, of the (proposed) “Constitution of the United Republic of Tanzania, 2014”; which is currently only waiting to be approved by referendum.
Thus, if, and when, it is so approved; we will, at long last, have obtained the long desired new constitution. And, considering the very extensive consultations which were carried out by the Warioba Commission (which had been tasked to obtain the peoples’ views and opinions thereon), plus the vastly inclusive nature of the Constituent Assembly which adopted it; this proposed new constitution will, hopefully, satisfy the burning desire of all those who have been persistently campaigning for its enactment. May God grant us that special peace. Amen.
piomsekwa@gmail.com/0754767576.
Constitutions are made, and from time to time amended, in response to certain specified major political events or occurrences. Such occurrences are what I have referred to as the ‘driving factors’ for constitutional reform.
My own personal experience of the processes of ‘constitution making’ and ‘constitutional amendment’ in Tanzania, shows that the basic driving factor for constitutional reform, has always been the political ‘needs and requirements’ of the relevant period. For example, the making of the Tanganyika Republican Constitution of 1962, was driven solely by the obvious need to discard the “Dominion constitutional status” which was bequeathed to us by the departing colonial Administration, under which the Queen of England had continued to be the Head of State of independent Tanganyika! The Republican constitution effectively removed that strange anomaly .
The subsequent constitutional reforms were similarly driven by the ‘needs and requirements’ of the relevant period. The enactment of the “One-party” State Constitution of 1965, was driven primarily by the strong “wind of change” which blew across the African continent at that material time; and brought about the adoption of the ‘single-party” political system by almost all the countries of Africa; and the same strong “wind of change” is what facilitated the return by all these countries, to the multi-party constitutional political system. The enactment of the “interim constitution of the United Republic of Tanganyika and Zanzibar” of 1964; was driven by the ‘needs and requirements’ of that material time, which were to make the necessary constitutional provisions for the newly created state. And the making of the current constitution of Tanzania of 1977, was driven by the ‘needs and requirements’ of that period, which were to create a ‘permanent’ constitution for the country, which would replace the “interim Constitution” of 1964.
Constitutional amendments are similarly driven by the same factors.
Fourteen amendments have so far been made to the Constitution of the United Republic of Tanzania, 1977; and they have all been driven by the same factor; namely, “the needs and requirements of the relevant period”. Such amendments were also made mostly in response to the ‘needs and requirements’ of the relevant period. For example, in 1984, Parliament made a number of major, significant amendments to the Constitution in response to the directives which had been issued by the National Executive Committee of the ruling party (CCM}; which was constitutionally mandated to make such decisions relating to the political needs and requirements of the moment, under the doctrine of “Party supremacy” which was in operation at that material time.
Thepersistent demands for ‘a new constitution’.
Indeed, right from the time of the reintroduction of multi-party politics, and especially following the first multi-party general election of 1995; demands for the enactment of a new constitution of the United republic have been persistently made by the opposition parties,, supported by other interested stakeholders. Thus, In response to these demands President Kikwete, during his second term in office, commendably instituted the constitution making process which culminated in the enactment, by the Constituent Assembly, of the (proposed) “Constitution of the United Republic of Tanzania, 2014”; which is currently only waiting to be approved by referendum.
Thus, if, and when, it is so approved; we will, at long last, have obtained the long desired new constitution. And, considering the very extensive consultations which were carried out by the Warioba Commission (which had been tasked to obtain the peoples’ views and opinions thereon), plus the vastly inclusive nature of the Constituent Assembly which adopted it; this proposed new constitution will, hopefully, satisfy the burning desire of all those who have been persistently campaigning for its enactment. May God grant us that special peace. Amen.
piomsekwa@gmail.com/0754767576.
Source: Daily News today.
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