CONSTITUTION

by Enos Bukuku

Signs the constitutional review process is to be revived?
A few months ago, it appeared that President Magufuli had abandoned any plans for the government to imminently revive the process of creating a new constitution. However, he recently appointed two former Constitution Review Commission (CRC) members, Humphrey Polepole and Prof Palamagamba Kabudi, to senior positions. Mr Polepole will act as CCM Publicity Secretary, whilst Prof Kabudi will take over from Harrison Mwakyembe (see Politics section, this issue) as Minister of Constitution and Legal Affairs. Prof Kabudi is considered an experienced authority on legal and constitutional matters.

In his address to Parliament in early April 2017, Prof Kabudi stated that the government is reviewing all its laws relating to the constitution before continuing with the process. “I am new to the ministry, but the government had other priorities when it came into power. The process will now resume from where it ended,” he stated.

However, “where it ended” was that it only remained for the controversial proposed constitution to receive the approval of the public through a national referendum. Many politicians have pointed out the fact that this process is not provided for in the 2017/2018 government budget. The Tanzania Constitution Forum (TCF) has expressed its concern about this. Moreover, and setting budget issues aside, there are still difficult political issues to overcome if a new constitution is to be created.

At a recent General Meeting of the Tanzania Constitution Forum, Gaudence Mpangala, a senior lecturer at Ruaha University College, commented that 2017 and 2018 are the right times to finalise the constitution process. He pointed out that 2019 will involve local government elections and then in 2020 the national elections.

The draft constitution which was produced by the CRC contained many recommendations which were rejected by the Constitution Assembly (CA). The CA chose to reject the proposed three-tier government and stick with the current government structure. It also chose not to limit the tenure of MPs in circumstances where due to illness, incompetence or incarceration they could be removed from office. Former President Kikwete’s criticism of the CRC’s draft constitution appears to have resulted in the sections he had criticised being omitted from the final draft. One must therefore ask whether Prof Kabudi and company will have enough freedom and autonomy to find a solution without Presidential interference with the contents of the constitution, especially if there are elements within it which limit presidential powers.

This concern is heightened by the criticism the government has been facing for restricting freedom of expression and freedom of assembly. There are some who consider that the President has too much power and/or acts above the law. Whether there is any merit to these complaints, the perception that the people have about their government is of great importance, especially where fundamental human rights are involved. Presidential powers and citizens’ rights are therefore likely to become hot topics if the review process is revived, and indeed even if it is not.

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