In the Judiciary system, by rule, or convention, court judges have a duty to give reasons for their decisions, when they deliver their court judgments. But it is totally different in the Administrative system, such as the government; where it does not apply. Thus, when President Jakaya Kikwete of the Fourth phase government decided to embark on the process of introducing a new constitution of the United Republic of Tanzania at the beginning of his second term in office in 2011; he had no obligation to publicly disclose his reasons for that decision; which left some inquiring minds, even within CCM, wondering why he had taken such decision.
But for those who knew its background well enough, this decision was, basically, a spectacular manifestation of ‘prudent political management’. It was, in fact, a positive response to the political needs and demands for a new constitution that were being repeatedly raised by the Opposition parties; and which, if they had continued to be ignored or obstinately left unattended, would possibly have created a major political crisis; as had been manifested by the political events which occurred during his first term in Office which had just expired, indicating that his government was fast losing the peoples’ moral support.
It is common knowledge that in order to be effective, any government of the day needs a certain high level of popular acceptability, popular support, and obedience. This is firmly embedded in the political principle that ‘an effective government must be based on popular support and consent’.
Thus, in practice, the government’s legitimacy is justified not in legal terms alone; it also needs moral justification from the people it governs. For example, the government could lose the people’s moral support, upon the occurrence of certain negative factors , especially where the occurrence of such events is attributed to it; and the government either fails, or neglects, or obstinately refuses to recognize the gravity of these problems, by not taking the necessary measures to provide the expected reliefs. Such factors would include:- the people facing economic hardships due to the adoption of unpopular policies; poor delivery of social services; failure to control crime; and serious corruption scandals attributed to government leaders or officials; etc.
The last mentioned factor of corruption scandals is what seriously eroded the people’s trust in President Kikwete’s first term government; and very nearly became CCM’s “killer disease” in the 2010 general election. This relatively huge loss of people’s moral support, was caused by an unprecedented emergence of corruption scandals during President Kikwete’s first term in office; which were directly associated with a number of government Ministers, including the then Prime Minister Edward Lowassa; who was linked to the “Richmond scandal”, that eventually led to his forced resignation from that office in February 2008. And this forced Prime Minister’s resignation event was followed, in rapid succession, by another, equally damaging scandal, relating to the theft of reportedly large amounts of money, allegedly stolen from the Central Bank’s External Payments Account, which became known as the “EPA scandal”.
Naturally, such serious allegations (to which, apparently, President Kikwete’s government failed to provide satisfactory responses); created a truly hostile political environment which could have led to the downfall of that CCM government; due to the principle that ‘in order for the constitutional order to be maintained, the government, at any time, needs the people’s moral support; the lack of which could lead to civil disobedience, and the maintenance of law and order would obviously become very difficult.
The said scandals seemingly produced significant levels of public anger, which became clearly manifested in the 2010 general election; in which President Kikwete’s victory dropped drastically from the massive 80% which he had received in 2005, down to 61%. In addition, there were similar manifestations of voters’ anger in the Parliamentary elections; in which some prominent CCM candidates were soundly defeated. And popular public opinion, obviously wrongly, accused the constitution as being the “leaking umbrella”.
The cumulative effect of all these rather unusual events, must have been the principal factor that made President Kikwete feel obliged to embark on the task of making a new constitution, in order to avert this emerging political crisis. This was, indeed, a very smart move, because it also positively responded to the persistent Opposition parties’ demand for a new constitution. And this is what I have described above as “prudent political management”.
The constitution-making ‘guiding factors’.
In one of my past articles on “constitution-making in Tanzania” which have been published in this column, I referred to two of the “principal factors which normally guide the process of constitution-making” (as prescribed in the books of authority on this subject). They are the following:-
(a) the political forces which are at work at the material time; and
(b) the commonsense considerations of practical convenience. And these are the main factors which have generally also influenced the ‘constitutional engineering’ process even here in post-independence Tanzania. These are the factors which largely prompted the ‘constitutional change’ to multi-party politics in 1992; and they are the same factors that prompted President Kikwete (as he was then) to embark on the task of introducing a new constitution of the United Republic, in 2011. And, in view of the political forces that were ‘at work during the relevant periods; it can reasonably be argued that ‘prudent political management’ was the main consideration; which, in both cases, was guided by the factor of “the commonsense considerations of practical convenience”.
The twin concepts of ‘ constitutional change’.
The expression ‘constitutional change’ is actually a twin concept, which implies two distinct processes: one is the enactment of an entirely new constitution; but the other is the introduction of changes in the existing constitution. In their recorded history, countries like the United States of America, and India, have not enacted any new constitution, they only have been making amendments to their existing constitutions from time to time, as the need arises.
The expression ‘constitutional change’ is actually a twin concept, which implies two distinct processes: one is the enactment of an entirely new constitution; but the other is the introduction of changes in the existing constitution. In their recorded history, countries like the United States of America, and India, have not enacted any new constitution, they only have been making amendments to their existing constitutions from time to time, as the need arises.
But Tanzania’s experience in this regard, shows that we have been using both options, that of introducing a new constitution (as happened in 1962, when the Tanganyika Republican Constitution was enacted); in 1965, when the One-party State ‘interim’ constitution was enacted); and in 1977 (when the ‘permanent’ constitution was enacted; and former President Kikwete’s decision in 2011, to start the process of enacting a new constitution; as well as that of introducing amendments to the existing constitution.
In respect of making a new constitution, the normal practice has been for the relevant Authorities to issue specific directives to the constitution-making body, specifying the provisions which must be incorporated therein, in order to protect certain national interests, for example, of maintaining the values of democracy, as was the intention in President Nyerere’s directives that were issued in respect of the 1965 ‘one-party’ constitution; or maintaining the “national values and ethos” in President Kikwete’s directives issued in 2011.
The other option of making amendments to the existing constitution has been used fourteen times since its enactment in 1977. And some of these amendments have introduced very significant and substantial constitutional changes; such as the 1984 amendments, and the 1992 amendments.
The 1984 amendments addressed the crucial issue of strengthening the operation of democracy in the one party constitutional dispensation, in areas such as enhancing the authority of Parliament and its representative character; and peoples’ power at the grassroots level, by providing for the establishment of democratic Local Authority representative institutions. They also introduced the Bill of Rights provisions; which previously had been rejected when it was first considered for inclusion in the ‘one-party’, constitution of 1965; on the ground that “it would cause endless litigation, and that it would adversely affect the government’s fast-track development strategy” .
Legal pundits had advised at the time , that “A Bill of Rights has the tendency to turn communal values into legal battlefields. It will generate a litigation culture, and the only benefit will be to the lawyers. But in addition, there was also the concern that “a Bill of Rights takes away power from an elected Parliament, to an unelected Judiciary”.
Similarly, the 1992 constitutional Amendments were even more substantial, for they introduced a fundamental change of the country’s political system, from the single-party to the multi-party system . And I too was of the opinion that such fundamental change would necessitate the enactment of a new constitution, and said so loudly in a paper which I wrote at the time titled Towards a Multi-Party Constitution. This Paper was subsequently included as Chapter Ten in my book titled The Transition to Multi-partysm in Tanzania ( Dar es Salaam University Press, 1995). But the relevant Authorities thought otherwise, and opted for the alternative procedure of introducing amendments in the existing constitution. Thus, we have, all the time so far, adhered to the established ‘constitutional principles an guidelines’.
President Kikwete’s procedural innovations.
In a refreshing departure from the normal practice and procedure described above; President Kikwete introduced new additional procedural steps to be taken in the process of implementing the constitutional change that he had decided to initiate; which he did through a new law enacted by Parliament, titled “the Constitutional Review Act, 2011, which was designed to govern that constitution - making process.
In a refreshing departure from the normal practice and procedure described above; President Kikwete introduced new additional procedural steps to be taken in the process of implementing the constitutional change that he had decided to initiate; which he did through a new law enacted by Parliament, titled “the Constitutional Review Act, 2011, which was designed to govern that constitution - making process.
Although he adhered to the normal practices described above; but in his directives to the constitution-making constituent Assembly, he also issued directives which introduced some new procedural steps that were to be followed, such as the requirement for a referendum to give approval to the Constituent Assembly’s proposals.
The other matters specified in the said directives included the following:-
(a) the continued existence of the United Republic;
(b) the continued existence of the Zanzibar Revolutionary government;
(c ) the continued existence of the Executive, the Legislative, and the Judiciary Branches of government;
(d) the maintenance of national unity, cohesion and peace;
(e) the holding of periodic elections based on universal adult suffrage;
(d) the protection of human rights, human dignity, and equality before the law; and
(e) the maintenance of the secular nature of the United Republic.
It can however be said, that this matter of issuing ‘guiding principles’ in constitution-making, Tanzania has taken a distinctly different approach of its own. This is because, in the making of their independence constitutions, countries like Namibia, Zimbabwe and South Africa; their ‘guiding principles’ actually represented a consensus of the different social groups involved who held differing vested interests, and were each seeking guaranteed protection of its particular interests.
It can however be said, that this matter of issuing ‘guiding principles’ in constitution-making, Tanzania has taken a distinctly different approach of its own. This is because, in the making of their independence constitutions, countries like Namibia, Zimbabwe and South Africa; their ‘guiding principles’ actually represented a consensus of the different social groups involved who held differing vested interests, and were each seeking guaranteed protection of its particular interests.
But In the case of Tanzania, the guidelines were intended to protect specified “political principles”. This is an inclusive concept, which ensures that all the country’s social groups are accorded the same rights and opportunities.
This background information will, hopefully, be useful to the newcomers, who will be participating in the forthcoming exercise of reactivating the stalled process for enacting a new constitution of the United Republic of Tanzania.
The issue of “constitutional guidelines” is the most pertinent lesson to be learnt from this presentation. Those that relate to protecting “group interests’, are obviously negotiable. But those that aim at protecting political principles, such as that of “national values and ethos” should, I humbly suggest, be taken for granted, and unanimously accepted.
piomsekwa@gmail.com /075767576.
Source>: Daily News and Cde Msekwa today.
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