CONSTITUTIONAL DEADLOCK

by Enos Bukuku

Throughout March and April the Constitutional Assembly (CA), the body tasked to come up with a final draft Constitution, was marred by divisions between two informal coalition groups within the Assembly.

“Tanzania Kwanza” is largely made up of CCM members; whilst “UKAWA” (Muungano wa Umoja wa kutetea Katiba ya Wananchi – Coalition of Defenders of the People’s Constitution) is formed mainly from members of the opposition parties.

The arguing and political mud-slinging is focussed almost exclusively on one issue: the nature of the relationship between Zanzibar and main­land Tanzania – “the union question”. Should Tanzania continue with a two-government system (i.e. Tanzania and Zanzibar), or adopt a three-government structure (Tanzania, Zanzibar, Tanganyika), also referred to as a “federal” government?

As the Constitutional Assembly’s first session broke up in April – to allow MPs to return to parliament for the annual budget session – UKAWA’s frustrations with CCM intransigence on the union question led them to walk out on the Assembly. UKAWA is thought to have considerable support among the Tanzanian public.

In 2010, as part of their election manifestos, both Chadema and the Civic United Front (CUF) pushed for a three-tier government, which had previously been proposed by various groups and commissions over the past 30 years or so. The Constitutional Review Committee (CRC) took the initiative and incorporated this into both the first and second drafts of the proposed constitution, which according to Joseph Warioba, Chairman of the CRC, “was aimed at safeguarding the 1964 merger between Tanganyika and Zanzibar”.

It has been argued by supporters of the three-government system that it streamlines the governmental structure and gives Zanzibar more autonomy, thus maintaining stability between mainland Tanzania and Zanzibar. Judge Warioba has gone on record several times to state that most Zanzibaris are in favour of the three-government idea, though this has been challenged by some Zanzibari politicians.

President Kikwete has been vocal in his objection to the proposal; in his opening speech to the Constitutional Assembly, he stated that a three-government system will not add value and will create problems. CCM, which had previously housed a wide range of opinions on the matter, fell quickly into line behind the president.

The delay in debating the draft constitution has had a knock on effect on new laws being drafted. Proposed energy legislation, for example, which could make Tanzania the first exporter of liquefied natural gas in East Africa, may now have to wait until next year.

Changes to the law to ensure better rights for women, children, the disabled, the press, and many other vulnerable groups are likely to be enshrined in the new constitution if it goes ahead. The issue of dual citizenship has received attention from a few high ranking politicians who suggest that its inclusion will be debated in the Constitutional Assembly. However, it is believed that dual nationality is more likely to be incorporated within a separate Act of Parliament rather than within any new constitution. Bernard Membe, the Foreign Minister, told the National Assembly in May: ”We believe that the time is ripe for our country to have an Act that allows dual citizenship, in the interest of our nation’s development”.

All these issues hang in the balance until the Assembly deadlock is broken.

The United Nations Development Programme (UNDP) has also been closely monitoring the situation. In May UNDP Administrator Helen Clark criticised UKAWA for its walk out earlier in the year and urged that they voice their concerns and discontent through the forum of the Assembly, rather than refusing to participate. This has been echoed by Judge Warioba, warning that failure to reach an agreement may plunge the country into a political crisis.

Kenyan politician and legal scholar Patrick Loch Otiendo Lumumba has been asked to mediate in the CA and ease the tensions between UKAWA and Tanzania Kwanza.

The CA Chairman, Samuel Sitta, also sought to broker peace between the rival groups with a reconciliation meeting scheduled for 24 July. The UKAWA members did not show up, arguing that it was pointless as CCM continue to hold a firm line on the union question. Deus Kibamba, chairman of the influential civil society group, Tanzania Constitution Forum (TCF), has called for the debate over the new constitution to be delayed until after next year’s elections. There are many who believe that Tanzania will not get a new constitution because both groups will never reach a consensus.

The debate on the Constitution is due to resume in August. The president has authorised a further extension of the time, allowing 60 days from 5 August for the CA to finalise the draft constitution before it can be presented to the public for a vote. At the time of writing, UKAWA continues to boycott the Assembly, though Sitta insists it will carry on regardless.

This raises two questions: Will the CA have sufficient members present to vote on the articles of the new constitution – will it be quorate? Without UKAWA members, it looks to be very close. And if votes are possible, will a new constitution written by a CCM-dominated Assembly have sufficient popular legitimacy and support to pass a national referendum, and stand the test of time?

It would be a bitter shame if it all collapses at this stage, wasting billions of shillings, years of preparation and most importantly, a golden oppor­tunity to address many of the fundamental problems that the country faces. An independent observer may be forgiven for reaching the con­clusion that Tanzanian politicians excel at forming coalition groups, but underperform in implementing objectives. The next few months will show whether such an observation is unfair.

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