IN last week’s presentation, I referred to the ‘understanding’ that has been reached to include the ‘new constitution’ agenda, in President Samia Suluhu Hassan’s ‘reconciliation’ process. And I also mentioned the two pending constitutional issues that have continued being raised in different formal platforms; namely: the ‘two-governments’ Union structure and the question of the independent candidate in elections. Due to editorial space limitations, we were able to discuss only the first issue and reserved the second one for discussion later. Hence, that is the subject of today’s presentation.
Strictly speaking, these were not, in fact, political conflicts as such in the sense that they were not conflicts between political parties. But nevertheless, they were raised by other interested stakeholders. The ‘two-government’ issue has been repeatedly raised by ‘Constitutional Review commissions’ chaired (and largely influenced) by senior Judiciary officers; and the ‘private candidate’ issue was raised by ‘human rights’ activists.
The long story of ‘private candidate’ issue
As a general rule, ‘political decisions are made under the influence of the political circumstance prevailing at the material time’. In the political circumstances prevailing around the time of the country’s independence, the participation of ‘independent candidates’ in elections was allowed. And, indeed, in the 1960 pre-independence parliamentary election; one such independent candidate actually defeated the official TANU candidate in Mbulu constituency. But when the ‘One-party’ constitution was enacted in 1965; it outlawed the participation of private candidates in elections. This major constitutional change was also dictated by the political circumstances of the time; which were that the country (Tanganyika) was operating as a de facto ‘One-party’ State, while it was, legally and in fact, a multiparty State. under the “Independence constitution” that was enacted by the British Parliament in London (based on the concepts and traditions of political management which were prevalent in the United Kingdom), and imposed on Tanganyika as part of the independence negotiations and Agreement in March 1961.
These were, indeed, unusual political circumstances, whose effects became manifested in two areas: (i) in the 1960 pre-independence Parliamentary election results, and (ii) in the functioning of the country’s Legislature.
The 1960 parliamentary election results actually surprised even the colonial Administration itself (whose officers had supervised the elections). In 58 constituencies (out of a total of 71 constituencies countrywide), the Tanganyika African National Union (TANU) candidates had all been elected unopposed at the time of ‘nomination of candidates’. And when the election was held, TANU candidates won by huge majorities in each of the remaining 13 constituencies; including Mbulu, where the independent candidate who won the election, was in fact a TANU member.
But in the Bagamoyo constituency, the African National Congress (ANC) candidate Zuberi Mtemvu (who was the President of that party), even lost his election deposit, for having received only 53 votes, which was far below the minimum required for a refund of the election deposit to be made to the candidate. TANU’s political dominance had been clearly demonstrated.
However, of much greater significance and importance was the fact that in the 58 constituencies where the TANU candidates had been elected unopposed, the voters therein had been effectively dis-enfranchised; which means that they had been denied the opportunity to cast their votes at that election. The reason for this was that under the multi-party environment, the law allowed each participating political party to nominate only one candidate for election in any given constituency; and if no other candidate is nominated, no ting takes place in that constituency.
Thus, by an ingenious paradox, the more support the people gave to TANU as a party, the more they reduced their own level of participation in the process of government; as a result of being dis-enfranchised!
This was regarded as a serious “democracy deficit” by Mwalimu Julius Nyerere, and that was one of his reasons for wanting a ‘One-party State’ constitution enacted, in which TANU would be required (by the constitution) to select more than one candidate to compete in each and every constituency, thus removing the possibility of the electorate being dis-enfranchised.
Mwalimu Nyerere’s major reason for wanting a ‘one-party’ constitution, was his philosophical conviction, that a multi-party system can be justified only “when the parties are divided over some fundamental issue or issues; otherwise, it merely encourages the growth of factionalism “And he was committed to preventing the emergence of any such factions.”
The “artificial” functioning of the Legislature was yet another reason that influenced his decision to abandon the multi-party system; for it curtailed the TANU MPs’ freedom of expression”; because they were required to follow the “party line”. In other words, they were not free to express their sincere opinions on subjects which came up for discussion in the House. And even such ‘caucus meetings’ are, in fact, part of the structure of multi-party Parliaments; as they are intended for use by the ruling party to determine their strategies for defeating the opposition MPs during debates on the floor of the House; which was not necessary in this case. But nevertheless, a “TANU Parliamentary party caucus” was established for that purpose. These were the main arguments that were advance in justifying the introduction of the “One-party” constitution; which would get rid of all such irrelevant restrictions.
Enter the ‘one-party’ constitution
But in crating the ‘One-party’ constitution, consideration was also given to a large number of other factors, including: (a) the need to ensure the maintenance of democracy in a one-party environment by “providing maximum possible participation by the people in their own government, and its ultimate control by them”; (b) the need to make provision for the maintenance of “ethics and integrity”; and (c) the need to make provision for the observance of the “fundamental rights and duties of every citizen”; and (d) the need to make provision for implementing the principles of “good governance and the rule of law”.
And among the other factors that were considered, was this controversial prohibition of private candidates’ participation in elections, by confining such participation only to “a citizen of Tanganyika who has attained the age of eighteen years, and is a member of the party. These provisions were retained; both in the constitution, and in the relevant election laws.
The return to multi-party politics
The constitutional amendments which were made by Parliament in 1992 in order to accommodate the multi-party system, also carried forward these prohibitive provisions. However, under the changed political circumstances, the said provisions became the subject of attack from different stakeholders; including Rev. Christopher Mtikilla, who filed a petition in the High Court challenging the constitutionality of these provisions, in the case cited as Rev. Christophet Mtikila v Attorney General (1995), T.R.L. 31 of 1997; in which he asked the High Court to declare several statutory provisions to be unconstitutional “for infringing the rights and freedoms guaranteed by the constitution of the United Republic”.
Strictly speaking, these were not, in fact, political conflicts as such in the sense that they were not conflicts between political parties. But nevertheless, they were raised by other interested stakeholders. The ‘two-government’ issue has been repeatedly raised by ‘Constitutional Review commissions’ chaired (and largely influenced) by senior Judiciary officers; and the ‘private candidate’ issue was raised by ‘human rights’ activists.
The long story of ‘private candidate’ issue
As a general rule, ‘political decisions are made under the influence of the political circumstance prevailing at the material time’. In the political circumstances prevailing around the time of the country’s independence, the participation of ‘independent candidates’ in elections was allowed. And, indeed, in the 1960 pre-independence parliamentary election; one such independent candidate actually defeated the official TANU candidate in Mbulu constituency. But when the ‘One-party’ constitution was enacted in 1965; it outlawed the participation of private candidates in elections. This major constitutional change was also dictated by the political circumstances of the time; which were that the country (Tanganyika) was operating as a de facto ‘One-party’ State, while it was, legally and in fact, a multiparty State. under the “Independence constitution” that was enacted by the British Parliament in London (based on the concepts and traditions of political management which were prevalent in the United Kingdom), and imposed on Tanganyika as part of the independence negotiations and Agreement in March 1961.
These were, indeed, unusual political circumstances, whose effects became manifested in two areas: (i) in the 1960 pre-independence Parliamentary election results, and (ii) in the functioning of the country’s Legislature.
The 1960 parliamentary election results actually surprised even the colonial Administration itself (whose officers had supervised the elections). In 58 constituencies (out of a total of 71 constituencies countrywide), the Tanganyika African National Union (TANU) candidates had all been elected unopposed at the time of ‘nomination of candidates’. And when the election was held, TANU candidates won by huge majorities in each of the remaining 13 constituencies; including Mbulu, where the independent candidate who won the election, was in fact a TANU member.
But in the Bagamoyo constituency, the African National Congress (ANC) candidate Zuberi Mtemvu (who was the President of that party), even lost his election deposit, for having received only 53 votes, which was far below the minimum required for a refund of the election deposit to be made to the candidate. TANU’s political dominance had been clearly demonstrated.
However, of much greater significance and importance was the fact that in the 58 constituencies where the TANU candidates had been elected unopposed, the voters therein had been effectively dis-enfranchised; which means that they had been denied the opportunity to cast their votes at that election. The reason for this was that under the multi-party environment, the law allowed each participating political party to nominate only one candidate for election in any given constituency; and if no other candidate is nominated, no ting takes place in that constituency.
Thus, by an ingenious paradox, the more support the people gave to TANU as a party, the more they reduced their own level of participation in the process of government; as a result of being dis-enfranchised!
This was regarded as a serious “democracy deficit” by Mwalimu Julius Nyerere, and that was one of his reasons for wanting a ‘One-party State’ constitution enacted, in which TANU would be required (by the constitution) to select more than one candidate to compete in each and every constituency, thus removing the possibility of the electorate being dis-enfranchised.
Mwalimu Nyerere’s major reason for wanting a ‘one-party’ constitution, was his philosophical conviction, that a multi-party system can be justified only “when the parties are divided over some fundamental issue or issues; otherwise, it merely encourages the growth of factionalism “And he was committed to preventing the emergence of any such factions.”
The “artificial” functioning of the Legislature was yet another reason that influenced his decision to abandon the multi-party system; for it curtailed the TANU MPs’ freedom of expression”; because they were required to follow the “party line”. In other words, they were not free to express their sincere opinions on subjects which came up for discussion in the House. And even such ‘caucus meetings’ are, in fact, part of the structure of multi-party Parliaments; as they are intended for use by the ruling party to determine their strategies for defeating the opposition MPs during debates on the floor of the House; which was not necessary in this case. But nevertheless, a “TANU Parliamentary party caucus” was established for that purpose. These were the main arguments that were advance in justifying the introduction of the “One-party” constitution; which would get rid of all such irrelevant restrictions.
Enter the ‘one-party’ constitution
But in crating the ‘One-party’ constitution, consideration was also given to a large number of other factors, including: (a) the need to ensure the maintenance of democracy in a one-party environment by “providing maximum possible participation by the people in their own government, and its ultimate control by them”; (b) the need to make provision for the maintenance of “ethics and integrity”; and (c) the need to make provision for the observance of the “fundamental rights and duties of every citizen”; and (d) the need to make provision for implementing the principles of “good governance and the rule of law”.
And among the other factors that were considered, was this controversial prohibition of private candidates’ participation in elections, by confining such participation only to “a citizen of Tanganyika who has attained the age of eighteen years, and is a member of the party. These provisions were retained; both in the constitution, and in the relevant election laws.
The return to multi-party politics
The constitutional amendments which were made by Parliament in 1992 in order to accommodate the multi-party system, also carried forward these prohibitive provisions. However, under the changed political circumstances, the said provisions became the subject of attack from different stakeholders; including Rev. Christopher Mtikilla, who filed a petition in the High Court challenging the constitutionality of these provisions, in the case cited as Rev. Christophet Mtikila v Attorney General (1995), T.R.L. 31 of 1997; in which he asked the High Court to declare several statutory provisions to be unconstitutional “for infringing the rights and freedoms guaranteed by the constitution of the United Republic”.
The provisions that were challenged included those which prohibited the participation of independent candidates in elections.
His contention was that the requirement for membership of a political party “contravenes article 20(4) of the constitution, (which provides that no person shall be compelled to belong to a political party); together with article 21(1) (which entitles every citizen to participate in the government of the country, either directly or through freely chosen representatives) were both unconstitutional, for the reason that they deny the citizens their right to participate in in the governance affairs of the nation”.
His petition initially succeeded, as judgment was given in his favour. But the wording of that judgment had provided a loophole, which enabled the government to escape its implementation. That judgment said: “It is illogical for a law to provide that no person shall be compelled to belong to a political party, and in the same breath, to provide that no person shall be qualified to run for office except through a political party. If it was the intention of the Legislature to exclude non-party citizens from participating in the government of their country, it could easily have done so by removing the generality in article 21(1)”
The loophole was in the final sentence; which the government promptly used by submitting to Parliament its proposals for amending that article of the constitution, “in order to remove that generality”. Parliament duly obliged, by enacting Act no.34 of 1994. However subsequently, on 17th February, 2005; Rev. Mtikila filed yet another petition to the High Court, seeking a declaration that even Act no. 34 of 1994 had violated the constitution.
His second petition also succeeded; when the Court again agreed with the petitioner, and declared that the amendments to the constitution which were introduced by Act no, 34 of 1994, were unconstitutional. But on its part, the government announced its intention to appeal against this decision, in order to seek a determination of the question “whether the High Court has the power to declare a provision of the constitution itself to be “unconstitutional”! I am not aware of the outcome, if any, of this appeal.
This ‘legal battle’ reminds me of the objections which were raised in the Parliament of the Australian Capital Territory, when the House was considering proposals for the enactment of a “Bill of Right; when some of its Members contended that “A Bill of Rights” will generate a litigation culture, and the only benefit is to the lawyers”.
The 1984 amendments to the Constitution of the United republic had introduced a Bill of Rights into the Constitution of the United Republic. Hence, the “litigation culture” that was alluded to by the Australian Law makers had, apparently, been created here, and Rev. Christopher Mtikila was a beneficiary thereof.
But because of the persisting Opposition parties’ demands for a new constitution, President Benjamin Mkapa appointed a ‘Constitutional Review Commission” under the Chairmanship of Mr. Justice Kisanga. The Commission’s Report said that it had used the methodology of asking the people to address specific areas of the constitution which were deemed to require amendment. These included “the structure of the Union”; and the issue of the “private candidate in elections”.
The commission’s findings on each of these matters are reported as follows: -“Regarding the question of the ‘structure of the Union’; 96.25 per cent of all the people who responded to this question preferred the ‘two-government structure’; and regarding the question of allowing private candidates to participate in elections; 92.13 per cent were against allowing private candidates to participate in elections. The status quo had been effectively defended.
Mwalimu Nyerere joins the chorus
Another prominent personality who joined the chorus for demanding the removal of this prohibition, was Mwalimu Nyerere himself; when he expressed his views at a public rally that was held in Mbeya on May Day in 1995 (to which he had been invited in the capacity of ‘Guest of Honour)’. In his key note Address, among many other things, Mwalimu Nyerere also said the following: -“Ninalo tatizo moja ambalo ninataka kulisema hapa, kwa sababu ninaona ni la msingi sana. Mimi nadhani kwamba sheria zetu zimekoea sana, kwa kuzuia wagombea binafsi, Hili ni jambo la msingi kwa sababu linahusu haki ya mtu ya kuomba kura. Hiyo ni haki yake ya kiraia, ambayo huwezi kumnyima.” However, even his powerful intervention has not succeeded in removing the said prohibition.
piomsekwa@gmail.com /0754767576.
His contention was that the requirement for membership of a political party “contravenes article 20(4) of the constitution, (which provides that no person shall be compelled to belong to a political party); together with article 21(1) (which entitles every citizen to participate in the government of the country, either directly or through freely chosen representatives) were both unconstitutional, for the reason that they deny the citizens their right to participate in in the governance affairs of the nation”.
His petition initially succeeded, as judgment was given in his favour. But the wording of that judgment had provided a loophole, which enabled the government to escape its implementation. That judgment said: “It is illogical for a law to provide that no person shall be compelled to belong to a political party, and in the same breath, to provide that no person shall be qualified to run for office except through a political party. If it was the intention of the Legislature to exclude non-party citizens from participating in the government of their country, it could easily have done so by removing the generality in article 21(1)”
The loophole was in the final sentence; which the government promptly used by submitting to Parliament its proposals for amending that article of the constitution, “in order to remove that generality”. Parliament duly obliged, by enacting Act no.34 of 1994. However subsequently, on 17th February, 2005; Rev. Mtikila filed yet another petition to the High Court, seeking a declaration that even Act no. 34 of 1994 had violated the constitution.
His second petition also succeeded; when the Court again agreed with the petitioner, and declared that the amendments to the constitution which were introduced by Act no, 34 of 1994, were unconstitutional. But on its part, the government announced its intention to appeal against this decision, in order to seek a determination of the question “whether the High Court has the power to declare a provision of the constitution itself to be “unconstitutional”! I am not aware of the outcome, if any, of this appeal.
This ‘legal battle’ reminds me of the objections which were raised in the Parliament of the Australian Capital Territory, when the House was considering proposals for the enactment of a “Bill of Right; when some of its Members contended that “A Bill of Rights” will generate a litigation culture, and the only benefit is to the lawyers”.
The 1984 amendments to the Constitution of the United republic had introduced a Bill of Rights into the Constitution of the United Republic. Hence, the “litigation culture” that was alluded to by the Australian Law makers had, apparently, been created here, and Rev. Christopher Mtikila was a beneficiary thereof.
But because of the persisting Opposition parties’ demands for a new constitution, President Benjamin Mkapa appointed a ‘Constitutional Review Commission” under the Chairmanship of Mr. Justice Kisanga. The Commission’s Report said that it had used the methodology of asking the people to address specific areas of the constitution which were deemed to require amendment. These included “the structure of the Union”; and the issue of the “private candidate in elections”.
The commission’s findings on each of these matters are reported as follows: -“Regarding the question of the ‘structure of the Union’; 96.25 per cent of all the people who responded to this question preferred the ‘two-government structure’; and regarding the question of allowing private candidates to participate in elections; 92.13 per cent were against allowing private candidates to participate in elections. The status quo had been effectively defended.
Mwalimu Nyerere joins the chorus
Another prominent personality who joined the chorus for demanding the removal of this prohibition, was Mwalimu Nyerere himself; when he expressed his views at a public rally that was held in Mbeya on May Day in 1995 (to which he had been invited in the capacity of ‘Guest of Honour)’. In his key note Address, among many other things, Mwalimu Nyerere also said the following: -“Ninalo tatizo moja ambalo ninataka kulisema hapa, kwa sababu ninaona ni la msingi sana. Mimi nadhani kwamba sheria zetu zimekoea sana, kwa kuzuia wagombea binafsi, Hili ni jambo la msingi kwa sababu linahusu haki ya mtu ya kuomba kura. Hiyo ni haki yake ya kiraia, ambayo huwezi kumnyima.” However, even his powerful intervention has not succeeded in removing the said prohibition.
piomsekwa@gmail.com /0754767576.
Source: Daily News today.
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