Chris Maina Peter: The Draft Constitution 2013 A Silent Revolution

THE DRAFT CONSTITUTION 2013: A SILENT REVOLUTION

Chris Maina Peter

United Nations International Law Commission, Geneva, Switzerland

Men make their own history, but they do not make it as they please; they
do not make it under self-selected circumstances, but under circumstances
existing already, given and transmitted from the past.
Karl Marx
The Eighteenth Brumaire of Louis Bonaparte (1852)

I. Introduction

Revolutions are normally rough, noisy and disruptive. However, there can be revolutions which
are earth-breaking and ushering fundamental changes in a very silent manner. Such is the Draft
Constitution of the United Republic of Tanzania launched by the Vice President of the United
Republic of Tanzania Hon. Mohamed Gharib Bilal on Monday, 3rd June, 2013.
Tanzanians of all walks of life in Tanzania and abroad, were anxiously waiting for this Draft of
their future Mother Law the Constitution. No news had leaked from the offices of the
Constitutional Review Commission. Therefore, the summary of the Draft given by the
Commissions Chairman retired Judge Joseph Sinde Warioba caught the majority by surprise.
The Draft Constitution had gone beyond what most of the people were expecting. Its difference
from the existing Constitution of the United Republic of Tanzania of 1977 is like heaven and
earth. A lot of industry has gone into the production of this document. It is logical in its frame
and the contents are highly balanced.
This document is not a product of one of the normal endless retreats we are used to. There is
no doubt it comes directly from the views given by Tanzanians who took the trouble of meeting
with the members of the Commission in their various meetings and those who sent written
comments. It is therefore easy for the citizens to identify themselves with its contents because
one can easily trace his or her recommendation may be not put exactly the way it was given but
improved to fit into the general framework of a Constitution.
Let me make some very preliminary observations on this Draft with the hope that others will join
in this dialogue about this Draft Constitution:

II. Outline of the Draft Constitution

As the Chair of the Commission Judge Warioba explained while introducing the Draft to the
public on Monday, 3rd June, 2013, the Draft Constitution has a total of 240 Articles spread over
sixteen Chapters. It commences with a Preamble which places the whole exercise of preparing
a new Constitution in context, and ends with a Schedule which enumerates the Union Matters
as provided in Article 60 of the Draft.

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As indicated above, this is a large and important document. A week after release, it is not easy to
comprehensively analyse and evaluate it. Below is an attempt to provide very preliminary views
after looking at it.

III. What is New in the Draft Constitution

The Draft Constitution ushers in a completely new Constitution. The style used and approach to
issues is very different. The language is friendly and issues are explained in a more direct way
thus leaving little room for guessing and interpretation. There are more new things in this Draft
as very little has been borrowed from the old 1977 Constitution. That being the case, one can
only highlight a few of the new issues. They include the following:

(a). Three Governments

The Draft Constitution proposes for a federal system of government comprising of three
governments. That is, the government of the United Republic of Tanzania; the Revolutionary
Government of Zanzibar; and the Government of Tanzania Mainland (Chapter Six Articles 57
to 66). This is a major departure from the current two-government Union.
Incidentally, this is not the first time that this form of State arrangement is being recommended.
The Nyalali Commission (On One Party or Multiparty Democracy) in 1992 proposed for the
formation of three governments and actually provided even to time-table for a smooth transition
to that governance arrangement by 1995. This proposal was ignored by the Second Phase
government of Mzee Ali Hassan Mwinyi. Again, in 1998 the White Paper Committee chaired
by retired Justice of Appeal Robert Habesh Kisanga recommended the same. The report of
Committee was trashed by the Third Phase President Benjamin William Mkapa at Diamond
Jubilee Hall before Dar es Salaam Elders (Wazee wa Dar es Salaam) and forgotten. Who knows
may be third time lucky and Tanzanians may eventually have their three governments.
It should be noted that while in the Nyalali Commission there was a dissenting opinion within
the Commission with a section of Commissioners mainly from Zanzibar insisting on the
retention of the two government system, this time around the Commission is unanimous on the
proposal for three governments.

(b). Limited Union Matters

The Draft Constitution proposes for the reduction of Union Matters from the current 22 to 7. It
should be remembered that the Articles of the Union in 1964 provided for 11 Union Matters.
The collapse of the old East African Community in 1977 necessitated additions to the Union
Matters. Others were added for different reasons. There have been continuous complaints,
particularly from Zanzibar that the increase of the Union Matters is illegal and also
proportionally reduces Zanzibars independence. Some have argued that in reality the Union
Matters are more than 22 with some saying that they are more than 40 if you un-pack some of
them.
Now, the Warioba Commission reduced Union Matters to merely 7 (Article 60 and the
Schedule to the Draft Constitution). These are: the Constitution and the Authority of the
United Republic of Tanzania; Defence and Security of the United Republic of Tanzania;
Citizenship and Immigration; Currency and the Central Bank; Foreign Affairs; Registration of

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Political Parties; and Customs Duty arising from goods and income without taxation arising from
Union Matters. With this proposal, the Commission has pulled the rug from under the feet of
many people who did not believe that the Commission was that brave and whose major pre-
occupation was to criticize the Union.

(c). Independent Candidates

The issue of having independent candidates in elections in Tanzania has been elusive. In the
early days of independence people were allowed to stand for public office as independents
without any political party affiliation or support. Mwalimu Julius Nyerere in a number of
speeches in support of independent candidates (the last one being May Day Speech in Mbeya in
1995) gave the example of the late Herman Sarwatt, a members of the then Tanganyika African
National Union (TANU) who stood as an independent candidate after being rejected by the party
and defeated the official party candidate. However, Mwalimu was ignored.
The matter was litigated in court several times. In the case of Rev. Christopher Mtikila v.
Attorney-General (High Court of Tanzania at Dodoma, Civil Case No. 5 of 1993), Lugakingira,
J. (as he then was) underlined the right of the citizen to stand in elections independent of any
political party. Following this High Court decision, the Constitution was amended to entrench
party nomination as a condition sine qua non for anyone wanting to vie for elected public office.
This amendment was challenged again in Christopher Mtikila v. The Attorney General (High
Court of Tanzania at Dar es Salaam, Miscellaneous Civil Cause No. 10 of 2005). This time it
was before three judges as the Basic Rights and Duties Enforcement Act, 1994 directs. These
were Manento, J.K. (as he then was); Massati, J. (as he then was) and Mihayo, J (rtd). In their
judgement penned by Honourable Mr. Justice Massati, the High Court declared that:
in principle it shall be lawful for private candidates to contest for the
posts of president and Member of Parliament along with candidates
nominated by political parties.
The court went on to provide on proper operationalization of its judgement. In their own words:
Exercising our powers under any other relief as prayed in the petition and
cognizant of the fact that a vacuum might give birth to chaos and political
pandemonium we shall proceed to order that the Respondent in the true
spirit of the original Article 21(1) and guided by the Fundamental
Objectives and Principles of State Policy contained in Part 11 of the
Constitution between now and the next general elections, put in place, a
legislative mechanism that will regulate the activities of private
candidates so as to let the will of the people prevail as to whether or not
such candidates are suitable.
The Republic was not happy. It went to the highest judicial organ in the country the Court of
Appeal of Tanzania. In a very disappointing decision in the case of Attorney General v. Reverend
Christopher Mtikila (Court of Appeal of Tanzania, Civil Appeal No. 45 of 2009) a Full Bench
for the Court (which was not necessary in the first place) reversed the decision of the High Court
and in so doing taking the country to square one blocking independent candidates again.
Therefore, the Draft Constitution comes to liberate the country from this awkward situation. This
is done through Articles 75(g) on the presidency; and Article 117(1)(c) on Members of

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Parliament. Also relevant to this issue are Articles 72(6)(b); 77(2); 87(1); 88(2); 116(2); and
184(3)(a) which elaborate on the various aspects of application of this principle.

(d). MPs Not Ministers

Departing from the old Westminster arrangement copied from England where Ministers are
picked from among the Members of the Parliament, the Draft Constitution proposes that
Ministers should not be MPs. Article 94(2)(a) specifically provides that Members of Parliament
and Members of the Zanzibar House of Representatives do not qualify to be appointed into the
Cabinet.
In order to have a Cabinet of professionals, Article 94(1)(b) the minimum education
qualification for a person to be appointed Minister is the first degree from a recognized
University. This is inter alia, aimed at cutting off the embarrassments to the government from
holders of dubiously acquired internet sourced degrees and particularly doctorates which are
on increase in official circles.
Separating MPs from the Cabinet will allow them to do the work they were elected for. It will be
an important disincentive for those who vie parliamentary seats with their eyes focused solely on
appointment to the cabinet.

(e). Peoples Power to Re-call their MPs

Article 124 of the Draft Constitution comes with a completely new phenomenon. It empowers
the electorate to remove their Member of Parliament. This is a fundamental change. However,
this will not be arbitrary. The Draft provides grounds for removal of an MP by his or her
electorate. These include the following: supporting policies which are against the interests of the
electorate and the nation; failure to present and defend well issues relating to the problems facing
the electorate; to shift domicile from the constituency and thus staying away from the
constituency for more than six months without good reasons; truancy and failure to attend three
consecutive parliamentary sessions without permission of the Speaker; to take up another job and
thus failure to follow-up duties as a member of parliament such as meeting the electorate; to be
involved in business activities which attract conflict of interest; to be convicted for an offence
related to corruption or any other criminal offence; and to do something which is contrary to
ethics and dishonesty. This is an interesting provision which will wake up most members of the
House and nobody will be caught by the camera dozing.

(f). Expanded Bill of Rights

Tanzania and particularly Tanganyika was one of the few countries within the Commonwealth to
become independent without a Bill of Rights in the Independence Constitution. This was not
accidental. The inclusion of such a Bill which was suggested by the departing British was
categorically rejected by the nationalists led by the Tanganyika African National Union (TANU).
It was argued that such a Bill would hamper the new government in its endeavours to develop
the country. In addition, it would be used by the judiciary, which at that time was mainly white,
to frustrate the government through declaring most of its actions unconstitutional. It is in this
context that the then Prime Minister the late Rashid Kawawa characterized a Bill of Rights as a

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luxury which merely invites conflicts. The status of Tanganyika as a Mandate and later
Trustee territory also played a role in this debate.
That argument was repeated in relation to the next three Constitutions, namely the Republican
Constitution of 1962; the Interim Constitution of 1965; and the Permanent Constitution of 1977.
A Bill of Rights was introduced in the Constitution in 1984 some twenty three years after
independence through the 5th Amendment to the Constitution of 1984. It was a Bill of Rights
which had been accepted reluctantly and thus introduced with a lot of claw-back clauses and a
derogation clause all of which limited actualisation of these rights. As if that was not enough,
the whole Bill of Rights was suspended for a period of three years allegedly to allow the
government to put its house in order. Thus, Tanzanians began enjoying their fundamental rights
and freedom as enshrined in the Constitution in 1988.
The Warioba Commission comes up with a relatively modern Bill of Rights. To be fair to the
Commission, it has gone beyond what most of the civil society organisations have been
demanding to be included in the new Constitution. Some very novel rights have been proposed in
the Draft. These include the freedom of information and the media (Article 30); right to
citizenship (Article 37); the rights of the accused or the convict (Article 38); right to education
(Article 41); right to a clean and safe environment (Article 40); the rights of the child (Article
42); rights of those living with disabilities (Article 44); rights of minorities (Article 45); the
rights of women (Article 46); rights of the aged (Article 47) and so on.
However, there are areas which the Bill of Rights could be improved. These include:
(i). The right to life in Article 23 is still squeezed. There is still a claw-back clause
which opens the door to justify the existence of the death penalty in the country.
This is something to consider.
(ii). Although the rights of the child have been provided in Article 42, the provision
does not define the child. It was expected that the Constitution will tell us once
and for all who a child is. This is because there are so many definitions of the
child depending on the context. There is a child for purposes of: elections;
criminal liability; contract etc. This is another area which the Draft could have
assisted to remove this ambiguity.
(iii). The right to medical care and particularly the right emergency care.
There may be other areas too. However, that is for the Constitutional foras (Mabaraza) to
indicate to the Commission which has not closed its doors with the publication of the Draft.
It should be added here that the Draft Constitution also imports into the country the rights
contained in the various international human rights treaties which the United Republic of
Tanzania has signed and ratified. This makes it possible for a person to invoke any of these
treaties in the local courts. They are thus more than persuasive authorities in our courts. This is
something to be tested in concrete cases.

(g). Special Seats for Women Now History

The current Constitution of the United Republic of Tanzania of 1977 provides for special seats
for women so as to create gender equality in the House. These are 30+% of the MPs directly
elected from the constituencies. They are allocated in accordance with the performance of their

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political parties at the polls. With the passing of this Draft into a Constitution this arrangement
will be history. Article 105(4) provides that in every constituency there will be slots for two MPs
- a woman and a man. That means that every constituency will be represented by two members
of parliament a women and a man. There can never be more equality than that. It takes a genius
to think of such an arrangement. Therefore, the attitude of treating special seats for women as
rewards comes to an end.

(h). Other Important Changes

There are other equally important changes being suggested in this Draft which are worth
commenting on albeit very briefly:

(i). Limited Tenure for MPs

Unlike before where a Member of Parliament could stay in that position as long as he or
she liked, the Draft Constitution limits the tenure for the MPs. According to Article
117(2)(a) after serving for three terms, a person is no longer qualified to stand for
elections. This means that when a person is elected, he or she is supposed to prepare a
strategic plan of fifteen years at most. This is because that is the maximum length of time
one can serve in the House.

(ii). Establishment of the Supreme Court

The Judiciary has not been left out. The Draft Constitution creates one more level in the
judicial structure. Since 1979 following the folding of the functions of the East African
Court of Appeal (EACA), the Court of Appeal of Tanzania was established as the highest
Court in Tanzania. It is a Union Matter. Now, the Draft Constitution provides for a
Supreme Court as the highest judicial organ in the country in Part Two (b) of Chapter
Ten (Articles 147-150). It will be headed by the Chief Justice who will also be the
President of this Court. This is an important development as it helps the country to join the
systems used by other member States of the East African Community.

(iii). No Protection of Stolen or Embezzled Property

Abuse of public office and embezzlement of public funds and property is developing into a
culture in the country. The thief is feted as hero. The Draft Constitution addresses this issue
as well. Article 36(3) on protection of private property specifically excludes protection to
property which has not been legally acquired. Therefore, for private property to be
protected, the owner has to show that it was legally acquired. This sends the right signal to
those specialising in abuse of office and stealing public property and these are not few!

(iv). Speaker of the National Assembly not Member of Parliament

The performance of the Office of the Speaker of the National Assembly has been under
scrutiny by the public for a long time. Questions are asked about the impartiality of both
the Speaker and the Deputy Speaker. It is a relief that the Warioba Commission has
realised the conflict of interest that confronts a member of parliament nominated by a
political party and holding those offices. Thus, the Speaker shall not be a Member of

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Parliament. Actually, becoming an MP is one of the grounds which makes a Speaker to

lose his or her position according to Article 129(1)(a) of the Draft Constitution.
Many believe that the current almost total disorder in the National Assembly is due to lack
of a totally non-partisan leadership. This proposed set up is likely to create the required
atmosphere to engaging in a balanced debate in the House chaired by a neutral person
unlike the novellas we watch on daily basis from Dodoma.

IV. Challenges to the Draft Constitution

It is one thing to have a good Draft Constitution and something else to take through the process
of acceptability. This is due to a variety of interests on the way. Although so far very little
criticism has been heard about the Draft, there is no doubt that there are those who are not happy
and are re-organizing and trying to absorb the shock of getting what they were not expecting.
(a). The first serious challenge to the Draft Constitution is those who gave particular
positions which were not adopted by the Commission. These include those who
preferred the continuation of the existing two-government system and not the
three-government system being recommended by the Commission from the
views of the majority of the people. There are also those who would like to
have three governments in a different form. In a form of a contract, as if there
can a more legitimate contract than a people-centred Constitution. All these are
powerful sections of the society with a large following may be not the
majority but substantive following nevertheless. They cannot be ignored and
ways have to be found to dialogue with them on vagaries of democracy. In a
democratic system one cannot always have his or her way.
(b). The second challenge is likely to come from the National Assembly. Members of
Parliament have been touches in different ways by the Draft Constitution. As
indicated above, the Draft Constitution limits terms which a person can serve
as an MP. Also, MPs can be recalled by the electorate; and also they can no
longer be appointed to the Cabinet. These are some of the proposals which
might not be received well in Dodoma.
Yet, the constitutional review process gives MPs a very central role. They form
the majority in the Constituent Assembly which is supposed to go through the
Draft in its totality. According to Part V (Sections 22 30) of the
Constitutional Review Act, 2012 (Chapter 83 of the Laws of Tanzania), the
Constituent Assembly is composed of all Members of the Union Parliament; all
members of the Zanzibar House of Representatives; and 166 other citizens
picked from (i) Non-Governmental Organisations; (ii) Faith Based
Organisations; (iii) all fully registered political parties; (iv) institutions of
higher learning; (v) groups of people with special needs; (vi) Workers
Association; (vii) an association representing farmers; (viii) an association
representing pastoralists; and (ix) any other group of persons under whatever
name having common interest. Therefore, MPs and Members of the Zanzibar
House of Representatives are more than 400. Therefore, it will not be
surprising if we get a very different Draft Constitution from the Constituent
Assembly.

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A highly altered Draft Constitution might not be acceptable to a considerable

number of those who support the current Draft fresh from the Commission.
They might reject the doctored version during the Referendum (under Part
VI of the Constitutional Review Act, 2012) which is next step after the
Constituent Assembly. This will be unfortunate because it will take us back to
where we started - the 1977 Constitution of the United Republic of Tanzania.
(c). The third challenge to the Draft Constitution is the composition of the
Constitutional Foras (Barazas). These groups of the citizens are established
under Part IV of the Constitutional Review Act and are supposed go through
the Draft Constitution before it goes back to the Commission for improvement
before going to the Constituent Assembly. Unfortunately, the majority of those
who have been elected into the foras have no idea what they are supposed to do
and even a large number of them have no capacity to undertake the task of
interrogating the work of the Commission. Some hope lies in the specialised
foras from the civil society, political parties and other institutions. Existence of
weak Barazas will not help the Commission where there are weaknesses in the
Draft. This is challenge without avenues to correct because they have already
been constituted.

V. Need to Change the Composition of the Constituent Assembly

In order to come out with a balanced Constitution there is a need of addressing the question of
the composition of the Constituent Assembly. This is because at the end of the day, it is this body
which will make the Constitution. Therefore, if it is not properly constituted, the product might
have problems. This is something which the government of the United Republic of Tanzania in
collaboration with the Revolutionary Government of Zanzibar might wish to consider before it is
too late. This is not an easy recommendation to address because MPs will not be happy to hear
about it notwithstanding the fact that the reality is glaring.

VI. Conclusion - So far so Good!

All in all, the Draft Constitution makes the 1977 Constitution look like a 19th Century document.
How we have survived under its direction and guidance for 36 years is a miracle. The Draft
Constitution is a good document which indicates good faith and logical thinking on the part of
the Commission. The fact that the Commission has managed to work in harmony and
unanimously produce a document of this calibre is a commendable feat and a lesson to all of us.
It is indeed a silent revolution! It will be a pity if, as usual, personal interests will push people to
try to frustrate this noble exercise. History might not be kind to them in future!