THE THIRTEENTH AMENDMENT

A Commission on Constitutional Reform under Judge Robert Kisanga began working in July 1998 and published its report on December 4 1999. It said that about 600,000 people had participated in the exercise. It had been asked to look at some 20 controversial constitutional issues. The 1977 Constitution has been amended many times -its initial 95 provisions have increased to 152 through various amendments over the years -and, following the Commission’s conclusions, the government proposed a number of changes, collectively known as the 13th Amendment to the Constitution which formed the basis of a Bill presented to Parliament.

THE UNION
The most important issue facing the Commission was the future structure of the Union on which strong views are held. There were three alternatives -Tanzania to be ruled by two governments (one for the Union and one for Zanzibar) as at present, or by three governments (for the Union, the mainland and Zanzibar as recommended by many mainland MP’s and academics) or by one unified government ¬≠something which is unacceptable to Zanzibar. The Commission appeared to be sympathetic to the idea of three governments but in its report stated that the overwhelming number of people they met wanted the present two government system to continue.

President Mkapa and his ruling party, the Chama Cha Mapinduzi (CCM) reacted quickly on the issue and made it clear that the present system would continue. Vice-President Dr Omar Ali Juma, in several speeches in Kilimanjaro Region, criticised critics of the present two­government system because they failed to indicate how the Union could be sustained under a three-government system.

STRONG OPPOSITION
An unusually united opposition in parliament was not happy about many other changes to the constitution proposed by the government in the Bill. Deputy opposition leader John Cheyo (UDP) protested on January 31 that the opposition had not been consulted. The principle objections were that
a) the President would, in future, be elected by a majority of the voters and not after receiving over 50% of the votes as at present (the government’s view was that the requirement for a 50% majority had been appropriate for one-party elections but, under multi-partyism was no longer suitable;
b) the President would be allowed to nominate 10 MP’s which the opposition considered to be undemocratic;
c) private candidates would still not be allowed to stand for parliament as, the government stressed that this would weaken multi-partyism and could risk producing candidates with religious, tribaIist or racial policies;
d) the President would nominate 20% women MP’s rather than the present 15%;
e) people who had at one time committed election offences would be barred from contesting any political post or joining in the election process;
f) the President would continue to choose the Prime Minister, the Governor of the Bank of Tanzania, the Commissioner of the Tanzania Revenue Authority, Pennanent Secretaries, Regional Commissioners and the Inspector General of Police and parliament would not have any influence on the selection;
g) the policy of socialism and self-reliance would remain as part of the constitution. Other clauses would ensure that tax evaders would not be allowed to stand for election and, in order to save money on by-elections (they cost Shs 200-500 million on average) these would not be held within one year of the following general election.

STRONG OBJECTIONS
The Tanzania Law Society described the changes as premature, partisan and inadequate. The Society were in support of many of the objections raised by the opposition and particularly objected to the creation of a ‘Human Rights Commission’ under the Office of the President. The Society said it should be an independent body.

A coalition of 20 civil society bodies and NGO’s calling itself the ‘Citizens Coalition for a new Constitution’ described the proposed changes as glaringly undemocratic and meant to ensure an easy landslide victory for CCM in the forthcoming elections.

A leading article in the Guardian headed ‘Legislators compromised democracy in Dodoma’ said that what was interesting about the debate was that what some of the CCM legislators were propounding in the august House was the complete opposite of what they were expressing (probably what they really believed) outside parliament. ‘We are baffled’ the leader writer wrote ‘by the honourable MP’s decision to endorse proposals which in effect may give us an unpopular president elected with only 35% ofthose people who vote’.

Those in favour of the amendments said that Tanzania needed a strong presidency and the opportunity for him to appoint ministers who were not politicians and also to have more women MP’s. MP Juma Akukwete told ‘Tanzanian Affairs’ that for him one of the most important factors was the expense of the election process. The two-phase system used in the recent Senegalese election, under which a second ballot is held if no candidate wins 50% of the votes, would be excessively expensive for Tanzania. Other supporters of the changes, particularly for the nomination of 10 MP’s, pointed out that the British Prime Minister nominates people to sit in the House of Lords.

LEGAL DEBATE

The Bill was passed after three days of debate on February 10 by 213 votes against 49 -well over the two thirds majority needed.

Three opposition parties ~ CUF, UDP and CHADEMA -indicated that they would sue the government regarding the way in which the 13th Amendment had been passed.

On the issue of which article of the constitution would be used to determine the procedure for amendment the Speaker decided that it would be Article 98(lA). This meant that the matter would be determined by a two thirds majority in the Union parliament only (not in the Zanzibar Assembly). The opposition insisted that it should be Article 98(1B) which required constitutional amendments to be passed by two thirds of both the Union and Zanzibar parliaments. CCM does not have a two thirds majority in the Zanzibar Assembly.

The next day however, the Attorney General (AG) refused to sign the opposition’s letter in support of a petition to get the High Court to interpret Article 98 (1A) of the Constitution. He said that Article 98(1A) was correct and needed no further interpretation. The opposition then proposed to use Article 26 which grants the right for any citizen to go to court when they consider that the constitution has been violated. A frustrated John Cheyo said that in other countries the AG would seek such court interpretation. The AG said that if the opposition had been intelligent enough they would not have wasted their time on the matter. Veteran CCM MP and former Prime Minister John Malecela said that the opposition ‘should have known better’.

‘IT TOUCHES THE VERY POLITICAL SOUL OF THE NATION’

The East African in its leading article under the heading ‘Unlucky 13th Amendment’ (February 14-23) was highly critical. It wrote: ‘Unfortunately, modem parliamentary democracy can sometimes allow patently undesirable changes to be bulldozed through by a brute majority assembled by the deeply undemocratic device of party whip, which ensures that members of the ruling party vote as they are told on pain of expulsion. The bloc voting approach gives no chance to the opposition, even when the latter makes proposals that are in the national interest. .. the 13th amendment touches the very political soul of the nation. It declares that a presidential candidate need not get an absolute majority ~ 51 % of the vote ~ to be declared the winner. … CCM’s policy makers may have reasoned that if the multi-party culture gathers momentum and the people, disillusioned with both CCM and the opposition, opt out of the electoral process, an absolute majority for Mr Mkapa cannot be guaranteed in the next elections. Even so, this formula does not guarantee CCM victory. If the opposition parties managed to agree on one presidential candidate …. the formula could work against its authors. It anyway makes President Mkapa cut a hypocritical figure when he tells Zanzibar leader Salmin Amour to stop his campaign to amend the Isles constitution to allow himself a third term (see below). Worst of all is the danger that the ‘simple majority’ principle could saddle Tanzania with a ‘tribal’ president with support in only a few regions -a deeply dangerous precedent has been set in East Africa.’

STATE HOUSE REPLY
In his response, State House Press Secretary Geoffrey Nkurlu, quoted in the Daily News on February 21, said that the East African had defied the ethics of journalism. ‘By omitting (mention) of the countrywide exercise to collect views from the people, the author deliberately intended to mislead the public, portraying the President as a despot, unpopular … and power hungry who could only win elections by bending the rules …. 92% of the people interviewed by the Presidential Commission supported the simple majority vote; 95% were in favour of the President nominating at least 10 parliamentarians. This measure would enable the president to nominate people from various social groups regardless of their political affiliation’ He pointed out that countries like the USA, UK and Kenya elected their leaders through simple majority vote. The system was cost saving and suitable for a developing country like Tanzania.

‘NOT MERELY DIFFICULT … ‘
Imre Loeffler writing in the East African commented: ‘Before anyone thinks that faulty constitutions and the incessant tinkering with them is a peculiarly African phenomenon or that the British handed down outrageously bad constitutions on purpose, it is advisable to read Machiavelli, that perspicacious theorist of political power who wrote: , … there was great difficulty in devising good laws whereby to maintain liberty. It is no wonder that a city which at the outset was in servitude to another, should find it not merely difficult, but impossible, ever to draw up a constitution that would enable it to enjoy tranquillity in the conduct of its affairs …. ‘

THE NEXT ELECTIONS
The opposition was further frustrated when the government turned down its request that political parties should be represented on the National Electoral Commission so as to ensure fairness in its deliberations. The government pointed out that the existing commission was unbiased and had well qualified members who were not allowed to belong to any political party. It was agreed that the election petition bond should be increased from Shs 500 to Shs 5 million to save costs -over l30 petitions contesting the results of the 1995 elections were submitted.

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