by Ben Taylor

Where to start looking for a new Constitution?
With President Samia Suluhu Hassan having re-ignited the process towards enacting a new national constitution (see previous issue of TA), the debate has more recently shifted to the issue of where the process should begin: with one or other of the previous drafts developed as part of the most recent constitutional review process between 2010 and 2015, or with more public consultations and a clean slate?

The so-called “Warioba Draft”, also known as the “second draft”, was submitted by a Commission led by Former Prime Minister Joseph Warioba to the then President, Jakaya Kikwete, and debated by the Constituent Assembly (CA) comprising MPs and other prominent figures (incidentally with President Hassan as the CA’s Vice-Chair). Among (many) other things, this draft proposed a significant shift in the relationship between Zanzibar and mainland Tanzania – what became known as the “three government” model with Zanzibar, mainland Tanzania and the United Republic of Tanzania all having their own governments.

The CCM-dominated Constituent Assembly, following the advice of President Kikwete, made major changes to this draft, producing the “Proposed Constitution” in 2014, which was intended to be put to a public referendum. This draft retained many of the changes in the Warioba Draft, but dropped the three-government idea. Instead, it proposed that the relationship between Zanzibar and the mainland should remain largely unchanged from its current form.

The process stalled when opposition parties withdrew from the process in protest at the changes, undermining the popular legitimacy of the process. Time before the general election of 2015 to resolve the issues became too short, and after 2015 President Magufuli showed no interest in pursuing the matter.

Anna Henga, the executive director of the Legal and Human Rights Centre (LHRC) says the process should convene a new Constituent Assembly that “should use both the Second Draft Constitution and the Proposed Constitution during its debate”. She added that “doors should also be opened for Tanzanians to deliberate the matter through meetings, debates and media discussions.”

Tanzania Constitution Forum (TCF) executive director, Bob Chacha Wangwe, expressed a similar view: “An independent committee of experts should be tasked to produce a new proposed constitution, with content compiled from the Second Draft Constitution and the Proposed Constitution, that would be taken to citizens for voting during the referendum,” he said.
Joseph Warioba himself called on the Presidential Task Force to reconsider people’s views when it comes to the country’s new constitution, arguing that the public are currently being sidelined. “It is sad that people’s voices seem to be ignored. I see that leaders and intellectuals are given high priority to air their concerns on the matter leaving aside the common people,” he lamented.

The retired Vice Chairman of CCM, Mr Philip Mangula, agreed. “For the new constitution, it’s better to pay attention to people’s views,” he said.
ACT-Wazalendo secretary general Ado Shaibu said a national consultative forum should be convened to gather stakeholders from different parts of the country for dialogue. A committee of experts should then prepare a new proposed constitution from the second draft document and the first proposed constitution, which should then be put to a public vote.

After the CCM National Executive Council (NEC) held in Dodoma in June, the party’s Ideology and Publicity secretary Shaka Hamdu Shaka briefed reporters about key discussions and decisions. He said CCM and the leading opposition party, Chadema, have been engaged in consensus meetings, noting that the ruling party has been actively participating in every step of deliberations. “Considering the current environment, the government should see how best the new constitution writing process could be revived and completed for the interest of Tanzanians and the country at large,” he said.

This move was broadly welcomed by opposition party leaders. ACT-Wazalendo party leader Zitto Kabwe said his party welcomed the CCM initiative with two hands. “We at ACT Wazalendo have been at the forefront in providing advice on proper means of getting the document,” he noted.

Chadema’s deputy secretary general (Mainland) Benson Kigaila said they supported the moves towards a new constitution and also called for the formation of a truth and reconciliation commission to discuss unjust and undemocratic incidents under the previous administration. “The commission will be responsible to ensure that such incidents will not repeat in future,” he said.

Speaking later at a debate among political party leaders, in July, Mr Kabwe said CCM as a whole had never really wanted multipartyism, but gave in to pressure and the persuasion of its then leader Mwalimu Julius Nyerere. He said the “original sin” for Tanzania’s democracy was to treat it as “supplied by CCM,” which also “meant that they would take it back if they so wished, as we saw between 2016-2021.”

At the same event, Chadema party chairman, Freeman Mbowe, said the current constitution guarantees protection to almost all top leaders, which leads to those in positions of responsibility making mistakes and arbitrary decisions without fear of any reprisals or accountability. He thanked President Samia for showing the willingness to tackle the challenges.

Tanzania’s current constitution dates from 1977, a time when the country operated a single-party system with power highly centralised in the position of the President. It has not been updated to reflect the adoption of multiparty democracy. Among the main calls of stakeholders – particularly those in opposition parties – is for a new constitution to properly establish the electoral commission as an independent body.

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