As Tanzanians celebrated fifty years of independence on 9th December 2011, they also engaged in an animated national debate over constitutional developments anticipated for 2012 (see TA No 99). This is not for the first time, nor are the basic issues unfamiliar: citizens are concerned to improve democratic structures, protect human rights and clarify the uneasy relationship between the mainland and Zanzibar.

In 1961 the Trust Territory of Tanganyika, to most people’s surprise, overtook its neighbours Kenya and even Uganda in the race to independence but, following the pattern of previous British decolonisation, paradoxically became for the first time part of the dominions of HM Queen Elizabeth II, represented locally by Governor-General Turnbull! (Zambia broke the mould in 1964, when it passed overnight from Protectorate to independent Republic.) Tanganyika also joined the Commonwealth (Nyerere’s ultimatum on apartheid having earlier forced the withdrawal of South Africa, a founder member of the organisation).

More surprises lay ahead. A month later, in a move unique among African nationalist leaders, Prime Minister Nyerere (still awaiting a biographer) resigned, replaced by his loyal deputy, the late Rashidi Kawawa. Nyerere spent much of 1962 as leader of the Tanganyika African National Union (TANU), which dominated Parliament and therefore controlled the Government, visiting local party branches to study and strengthen its democratic structures, based on ten-house cells at village level. Following constitutional amendments, Tanganyika became a Republic on the first anniversary of independence and Nyerere was installed as President, to lead the Government and country for more than 20 years.

Zanzibar gained independence on 9th December 1963; a month later the Sultan and Constitution were overthrown by revolution and the Afro-Shirazi Party (ASP) assumed control. In April 1964 the Articles of Union between Tanganyika and Zanzibar were signed, establishing the United Republic which later adopted the name Tanzania. Thus began a unique and troublesome quasi-federal relationship, which continues to dog national politics.

In 1965, in accordance with a TANU and Government decision and following a draft prepared by a Presidential Commission, the innovative one-party Constitution was adopted (see TA No 4). Redrafted in 1977, when TANU had become Chama Cha Mapinduzi (CCM), it lasted for over 25 years and still casts its shadow. It effectively subordinated national organs like the National Assembly to the primacy of Party organs. At elections voters chose between two TANU candidates selected by primary (party) elections, although in Presidential elections they voted for or against the single candidate nominated by TANU. Uniquely, Tanzania was a one-party state with two ruling parties (CCM on the mainland, ASP in Zanzibar), two Constitutions (Zanzibar adopted its own in 1979), two Presidents, two Parliaments and two governments.

Tanzanian leaders had rejected the inclusion of a justiciable Bill of Rights in the independence Constitution, but to protect citizens the 1965 Constitution adopted a novel form of collegiate `Ombudsman’ – the Permanent Commission of Inquiry, to investigate citizens’ complaints of maladministration. The only other Ombudsman then in the Commonwealth – in New Zealand – provided the model for the law Tanzania adopted. Not until 1984 did Parliament respond to public political pressure and add the Bill of Rights, enforceable by the courts, to the Constitution. The celebrated Arusha Declaration 1967 had constitutional implications, especially in the Leadership Code, as did the elaborate but ill-fated project of decentralised government in the 1970s.

Major constitutional change followed the Nyalali Presidential Commission (1991) (TA 50). This reflected and focussed public opinion in favour of a multi-party system, which was established by constitutional amendments. However, loyalty to the former single party CCM has given it overwhelming Parliamentary majorities at successive General Elections, only slowly eroded by the several opposition parties.

Jim Read

Now, for the latest information on the constitutional debate we are grateful to Frederick Longino who has brought us up to date:

Compiled by Frederick Longino

Few issues in Tanzania recently have attracted the attention given to the first stages of the constitutional review process now under way. Recent debates in parliament have attracted an unusual amount of interest and controversy.

After months of consultation, meetings of legislative committees, and waiting, a Bill allowing for the establishment of a Constitutional Review Body was read for the first time in the National Assembly on 18th April 2011. Following many complaints it was then amended and presented again.

A Tanganyika Law Society (TLS) press release stated that the Bill didn’t accurately reflect the will of the people. Many Zanzibaris in particular were unhappy. Many people wanted a new, rather than a ‘rewritten’ constitution, and the removal of inviolability clauses to ensure greater representation on the proposed Constituent Assembly. The Guardian reported ‘Constitutional Review Bill still drawing fire’. Suggestions came from human rights groups like TAMWA, The Legal and Human Rights centre, the Tanzania Retired Judges Association, the Trade Union of Tanzania, the University of Dar es Salaam academic staff assembly, the Centre for Democracy and the opposition parties. Consequently, the Citizen wrote that ‘elders should step in and rescue the Bill.’

In November, the government continued to solicit last minute consultations with constitutional experts from the University of Dar es Salaam and ex-prime ministers including Joseph Warioba and Salim Ahmed Salim.

This last minute opposition by activists, academics and civil societies didn’t diminish the government’s determination to take the Bill to parliament in Dodoma for the second reading in November. The main object of the Bill was to set in motion the process of collecting people’s views and re-writing the country’s basic law.

In the debates in parliament, MPs gathered amidst half a dozen media cameras. CCM MPs cheered wildly when anything was said to ridicule the opposition Chadema and NCCR-Mageuzi MPs.

Walkout
There was a walkout after Chadema’s Tundu Lissu MP had read an alternative draft Bill and rejected the government Bill. He objected that the Bill did not contain the various recommendations made by parliament when the first draft was rejected in April 2011. However both the government and Speaker refused to withdraw the Bill on the grounds that Tanzanians had been consulted and all legal processes had been followed. Chadema argued that the proposed Bill had given super powers to the President, including him being the only appointment authority of the constitutional commission, the qualifications of the constitutional commissioners, timescales for both debating the Bill and the proposed completion time. Eventually Chadema and NCCR-Mageuzi MPs boycotted the session by walking out prompting wild boos and cheers from CCM MPs (Mwananchi).

No volume of cheering CCM MPs could drown out the technical mistakes that afflicted the Bill but it was finally endorsed by parliamentarians on 17th November 2011. Retired Justice Khamis Msumi said that: ‘The terms of reference of the people who will draw up the constitution are the heart of the matter because they are the ones which lead the commission…the consequences of having bad terms will be the forming of a bad constitution’ – The Citizen.

When the opposition parties and civil societies came out in protest, even after parliamentary approval, the sealed Bill had already become an Act. The Minister’s envelope resembled a Christmas party gift on Christmas Day. The Bill was immediately dispatched to the State House for President Kikwete to assent, as explained when all local newspapers featured the story on 19th November.

At the last parliamentary debate arguments by both CCM and opposition MPs made MPs seem like a ‘grade-school talent pageant’. It is unfortunate that the few MPs from the opposition could not block the motion going through against the majority CCM MPs. The home audience following the debate through Star TV and TBC1 would have been baffled by what they saw – Mtanzania, Majira and The Citizen reported on 15th November that ‘the road to the new constitution will be very bumpy’.

Immediately after walking out, MPs from Chadema and NCCR-Mageuzi indicated that they no longer wanted to participate in the debate and the passing of the Bill, but preferred to speak directly to Tanzanians nationwide. The Guardian reported this on 16th Nov, but the Police immediately banned all political rallies.

Chadema meets the President

Chadema leadership meet with President Kikwete

Earlier Chadema had requested to meet President Kikwete to discuss the Act. Chadema claimed that the President had been misinformed of their party’s views. The two met in talks described as fruitful and apparently agreed that there was a need for the government and other stakeholders to hold constant meetings and consultations, for the purpose of soliciting a national consensus. But government believed that the bill was perfect and the day after the President met Chadema he signed the Constitution Bill. The President made it clear that he would continue to receive views from stakeholders on how to best to improve the situation. Chadema then indicated that they would be boycotting the entire process of constitutional review, according to The Citizen on 30th November.

For the huge majority of people abroad and in Tanzania it appeared that Chadema had not been much involved in deciding the contents of the Bill.

The Constitutional Review Act 2011 stipulates that ‘politicians including MPs, councillors, security organs, officers or anyone charged in court with offenses related to ethics and losing trust, will not be nominated to the Commission’ and that the Constitutional Assembly would comprise all union MPs, all members of the House of Representatives, ministers responsible for the constitution and justice from the Union and Zanzibar and Chief Justices from both sides of the Union. In addition, there will be 116 members who will be selected from NGOs, religious organisations, political parties, higher learning institutions and groups of people with special needs. The Bill stipulates in section 27 (1) that the Tanzania Electoral Commission in collaboration with the Zanzibar Electoral Commission would supervise a referendum to decide whether the country should have the new constitution or not.

However, Tanzania Daima reported on 12th November that Zanzibaris wanted the new union constitution to recognise Zanzibar’s status as a country. It is currently ‘seen’ as one of the regions of the United Republic of Tanzania. There were threats of demonstrations to make their voices heard, Nipashe reported.

If there is to be a moment of anxiety for Tanzanians it would probably be during this period until the review is completed. The government said it is very much committed to a ‘new’ or ‘lipsticked’ constitution. But, to fill time, the government has fulfilled its duty to present the Bill in parliament for debate.

The constitution, to Tanzanians, is the mother of other laws that all Tanzanians need to adore, and they could do a lot of good with it for their future. When the new constitution is ready Tanzania will be brighter. However, the ‘lipsticked’ constitution will certainly be unfit for the forthcoming challenges in the ever-changing Tanzania, Zitto Kabwe an MP for Chadema, writes in his facebook.

Frederick Longino is a PhD student at York University studying the Interplay between Childrens Welfare and African Pentecostal Belief and Practice. Earlier he worked on Good Governance in the President’s Office in Dar es Salaam.

Newly elected MP Peter Kafuma (CCM) is held aloft by his supporters

The Igunga district in Tabora Region might have become prominent in the history of Tanzania if, in the recent by-election there, Tanzania’s main opposition party Chadema had wrested the seat from the ruling CCM party. Both parties made tremendous efforts to win in some of the most active political campaigning Tanzania has ever seen. But Chadema lost and Igunga will now presumably return to its previous political obscurity.

Former President of Tanzania Benjamin Mkapa was chosen by CCM to lead its campaign. In his opening speech he slammed the opposition parties for trying to persuade the public that CCM had done nothing since independence. He said that during his term in office he worked closely with the existing Igunga MP, Rostam Aziz, (a prominent figure in the CCM leadership) to bring development to the area. “Such cooperation had made Igunga one of the most exemplary districts in Tanzania in terms of social development” he said.

The ruling CCM won the by-election by a narrow margin over the opposition party. Dr Peter Kafumu of CCM got 26,484 votes while Chadema’s Peter Kashindye got 23,260. Leopold Mahona from the Civic United Front (CUF), who was earlier considered a threat to CCM although the party’s main strength is in Zanzibar, was far behind with only 2,104 votes – Majira.

It was a highly eventful by-election in which all three main candidates used helicopters. Among the incidents reported in the press:

– the CUF candidate exchanged blows with Field Force Police after he was forced down from a podium. The police discovered that CUF had organized a meeting in an area already designated for Chadema.

– former President Benjamin Mkapa asked voters to choose CCM and not ‘childish’ political parties – Mwananchi.

– all parties fielded many of their top people including Chadema chairman Freeman Mbowe, Secretary General Dr. Wilbroad Slaa and youthful and charismatic MPs like Zitto Kabwe, Joseph Mbilinyi, Halima Mdee and John Mnyika.

– the media were there in strength. One journalist wrote how a CCM leader had been found in bed with another man’s wife but had escaped being beaten (Tanzania Daima). Later, CCM was reported to be buying up all newspapers in Igunga to bury the scandal – Mtanzania.

– Chadema supporters temporarily arrested the Igunga District Commissioner, who was said to be addressing an ‘illegal party meeting’ and the police then arrested two Chadema MPs said to have been involved.

How did CCM win?
The answer to this question (CCM had to defeat seven other candidates) was given by Ray Naluyaga in the Citizen. He summed it up as CCM’s clear message delivery, a well-coordinated party network, its campaign strategies and its long experience in local politics.

Admission by CCM that the national cake was small and that it must prioritise on what it does with it, made people understand why Igunga lacked bridges and roads, he explained. While Chadema enjoys immense support among the youth, CCM has women as permanent voters.

A PhD student was quoted as saying: “I attended Chadema’s campaign closing rally. It was the largest compared to those of CCM and CUF, but the crowd comprised mostly youths between 15 and 17 years of age who were not registered as voters…. “

CCM’s decision to use Rostam Aziz at its opening ceremony (after he had resigned from the party) restored the lost confidence among some voters who had started to see it as a party marred by internal conflicts. As for Chadema, he said it failed to give its candidate enough time to campaign. At the first rally party chairman Freeman Mbowe spent most of the time faulting President Kikwete, a thing that was not a priority for Igunga voters. The Chadema candidate was given only three minutes, though most people wanted to hear from the person seeking to be their MP. At other villages the candidate spoke for only five minutes. Chadema’s defeat was also blamed on the party’s failure to localise its campaign. Chadema used people from outside Igunga such as its MPs and other party officials while CCM relied heavily on locals. Wherever CCM held a rally, people close to Dr Kafumu, who were Igungans and spoke the local dialect, remained behind and chatted with the people face to face about their candidate and the party. This is something that Chadema did not do.

The Tanzanian government (and many of the Tanzanians who have commented) have made their views on what happened recently in Libya very clear. They were opposed to the NATO intervention (which was said to be designed to prevent the rebels in Benghazi from probable killing by Gaddafi forces); they objected to the involvement of Britain and France, especially as they considered that these countries were exceeding the UN and Arab League mandates for action. They then (in common with most of Africa) refused to recognise the rebels as a legitimate transitional government of Libya and expressed horror at the brutal way Colonel Gaddafi had been killed in the final days of the insurrection.

Foreign Affairs and International Cooperation Minister Bernard Membe said that that the Colonel did not have to die, as his pursuers had ‘seized him alive.’

According to the Minister, those who boast of being pioneers of human rights and justice should have arrested him and allowed him to be tried in court instead of killing him point blank. “The killing of the Libyan leader might trigger an endless war since there are many people in that country who have lost beloved ones and could be keen on revenge…. experience shows that an undemocratic regime leads to insecurity.”

Some people however felt that Gaddafi’s demise should act as a lesson to other leaders across the world and that the desire of the majority was more powerful than any individual. Others said: “Gaddafi was a brutal fascist dictator who mixed elements of Islamic religious fanaticism with Arabic nationalism and who put up a pretence of being a Pan Africanist.”

Others accused the African Union of not acting while a member state was being attacked.

Tanzania decided not to recognize the new Libyan government because it believed that international laws were violated in the overthrowing of Colonel Gaddafi. Tanzania did not allow the Libyan embassy staff in Dar to fly the new Libyan flag. The influential African magazine ‘New African’ wrote of what it described as ‘the new British/French colony’ that had been established in North Africa.