Tuesday, December 30, 2014

Hope for a New Katiba after Escrow?

Rekindling Hope for a New Katiba for Tanzania

Salma Maoulidi

Tanzania is in need of a miracle to get out of the mess it finds itself in after partisan interests derailed the constitutional review process embarked on at the end of 2011. Competing interests within the ruling party, which was originally opposed the constitution review process, as well as among those vying for power in the upcoming general elections, have polluted, not just the review process, but the overall political environment in the country.

The endorsement of the Proposed Constitution (PC) by the Constitution Assembly (CA) leaves very little room to manoeuvre a middle ground, leaving many exasperated. Amid the hopelessness, Humphrey Polepole, an ex-member of the Constitution Review Commission (CRC), urges citizens and civil society to refuse to surrender their destinies to a ruling clique that is bent to get their way in dictating Tanzania’s fate.

Crisis over the Constitution’s Legitimacy
Regardless what the outcome of the Referendum will be, Tanzania will have little cause to celebrate. The rationale that prompted the rewriting the 1977 Constitution was that it was not enough to fine tune problematic provisions through regular constitutional amendments. More drastic measures were warranted if Tanzania hoped to become a mature democracy. The prudent choice was to engage in a new constitutional pact through a consultative and inclusive process.

Part Six of the Constitution Review Act of 2012 states that if the proposed constitution fails to garner more than 50% of the vote in the Referendum then Tanzania will continue to use the 1977 constitution. Such a condition is in complete opposition to the primary objective of undergoing a constitution review. Additional concerns over the legitimacy of the PC include the fact that it departs significantly from the CRC Draft which is being defended as encompassing the will of the masses. The disregard of popular views by the CA is one of the key reasons behind the Katiba stalemate.

The adoption of the PC was also problematic. The CA endorsed entire sections of the PC instead of individual provisions. Also votes that are purported to have passed the PC have been contested as irregularities over tallying have been confirmed. There is overwhelming evidence of foul play with key constituencies planning to challenge the anomalies in court. Therefore, voting for the PC as it is amounts to a political blunder and a constitutional mockery.

Equally there are legal and operational challenges in facilitating the Referendum. For example, the Voter’s Register is yet to be updated potentially disenfranchising millions of eligible voters. Similarly, the National Electoral Commission (NEC) of Tanzania is yet to outline the modalities between itself and the Zanzibar Electoral Commission (ZEC) in administering the Referendum in light of the fact that each side of the union has its own legislation pertaining to the conduct of elections and referendums.

Contextualising the Separation of Powers
Khoti Kamanga, a law lecturer at the University of Dar es Salaam, contends that the constitutional review process has brought some of the theoretical constitutional concepts alive. The question of separation of powers, for instance, has been vividly displayed in the overall conduct of the CA and most recently in the handling of the Tegeta Escrow Account sagaArticle 55(4) of the 1977 Constitution requires that Ministers are Members of Parliament (MPs), a fact that compromises the notion of accountable governance. And if ministers are let go for abuse of office or incompetence, such dismissal does not affect their other portfolios. Former ministers forced to quit office in the course of their service remain in Parliament where they influence or oversee key policies they may have vested interest in.

Opposition legislators captured the mood of many when they objected to the former Attorney General (AG), Andrew Chenge, who was also implicated in the Escrow deal to input deliberations that were in fact discussing his fate. Despite his many controversies, Mr. Chenge heads the Parliamentary Budget Committee (a position he is expected to be forced to vacate by January following the parliamentary resolutions on the Escrow scandal), and was the Chair of the Drafting Committee in the CA. Fredrick Werema, the outgoing AG, is also a High Court Judge. His prosecution will, however, be complicated by the fact that, as a Judge of the High Court, he is thus immune from ordinary prosecution. Prior to a presidential demotion, Prof. Anna Tibaijuka, on her part, argued against her resignation stating that she was not directly responsible for the ministry implicated in the Tegeta Escrow scandal nor has her ministry been linked to Escrow. 
Separation of powers is not only relevant with regards to the exercise of power within the three arms of government, but also in the fuzzy separation between party roles and representative roles. Members of the CA, for example, were expected to represent the interests of the groups or constituencies they derived from, but time and time again Party whips influenced decisions of committees as well as of the CA. A similar situation arises with ministers who defend their party’s manifestos instead of the national interest.

Who Best to Police Impunity and Excesses?
Escrow exposed public officials who failed to exercise due diligence in handling matters of national and public interest. But other legislators, pushed by partisan sentiments or electoral ambitions, vigorously opposed any action against accused officials in disregard of Article 53 providing for collective ministerial responsibility. Nor the Ethics Council envisaged under Article 57(2)(g) or the Secretariat of The Public Leaders Ethics Commission have proved effective in checking official impunity.
Escrow also showed how public officials regularly disregard legal or ethical codes when discharging their functions. During the last parliamentary session, for instance, the Deputy Minister for Justice and Constitution Affairs, Angellah Kairuki, at various times, called on the former AG, Andrew Chenge, to suggest the legal language that was to be used to formulate Parliamentary resolutions over the Escrow deal in which Chenge was implicated. Even the Speaker did not sound the alarm when this was done until members of PAC and the Opposition objected to it on principle. And even then, the ruling party's MPs serving in government protested.

The defiance exhibited by cabinet ministers to assume responsibility, symbolic or actual, over lapses or violations has exposed the despotic nature of the political regime. It also begs the question of the utility of Article 53 on assuming collective responsibility. Ministers implicated in Escrow each wanted to be tried individually provided that actual intention to abuse their authority was established. In an effort to save face before the local elections, ruling party legislators thought it more pressing to negotiate the fate of the Prime Minister (PM), Mizengo Pinda, instead of defending the Constitution, promoting the national interest and the rule of law.

The question of accountability has also been underscored in the recently concluded flawed local government elections. The minister responsible for local government, Hawa Ghasia, is caricatured in one of the local dailies distancing herself from the local government authorities which oversaw the elections countrywide. The primary concern of most Tanzanians partaking in different stages of the constitution review process was enhancing the accountability of public institutions and officials. But key provisions of the PC have been rendered toothless by the CA. Kamanga believes that the present leadership crop in Tanzania could not afford to retain the leadership qualities outlined in the CRC Draft Constitution since they hardly measure up.

The Zanzibar Factor
Zanzibar amended her Constitution in 2010 in a move Mainland Tanzania believes violated the 1977 Constitution of the United Republic of Tanzania (URT). Among other things, the 2010 constitutional amendment redefined the status of Zanzibar, declaring it is a country or autonomous entity within the URT. The amendment also provided for the Government of National Unity (GNU) whose future has been tested following the machinations of the CA in passing a PC that is believed, by some factions in Zanzibar, not be in her interest. Even so the former AG of Zanzibar - who was forced out of office due to his stance - has attracted much praise on the Mainland over his defence of the Zanzibar Constitution. 

Similarly, during the constitutional review process, the Revolutionary Government of Zanzibar  (SMZ) was periodically accused of not meeting its obligation in servicing the union financially pursuant Chapter 7 of the 1977 Constitution. However, Escrow and other persistent graft accusations involving key ministries operating under the ambit of the URT has absolved Zanzibar with one commentator noting “why would Zanzibar want to associate with thugs?”

Keeping Hope for a New Constitution Alive
Among the numerous benefits of the constitution review process, aside from increasing political consciousness among Tanzanians, is the opportunity to address pervasive impunity in Tanzania’s governance culture. What prescription can release Tanzania from its present predicament? 

Harold Sungusia from the Legal and Human Rights Centre (LHRC) suggests that the Constitution Review Act can be amended to overcome the current impasse. Said Juma, an Assistant Programme Officer with the Tanzania Council for Social Development, (TACOSODE), stresses that the emphasis should be to allow Tanzanians to make their own minds about the constitution, not to impose views or decide for them.

Importantly, salvaging the constitution review process requires that Tanzanians must believe that all is not lost, even within the current legal setup. The PC can still be amended if it does not go through the first round of voting on either side of the union. Independent voices can influence the content of the problematic provisions at this stage so that the necessary changes are incorporated before the PC is put once again for the final vote. If no miracles happens in between it is the second stage of voting that will decide if Tanzania adopts a new constitution or remains with the 1977 Constitution.


Zablon December 31, 2014 at 9:29 AM  

This is very well said, the constitutional review process cost the country to the last penny, yet the assembly ended up rejecting the whole thing because it had tremendous effects on their future power abuse. The problem started when all members of parliament constituted the majority in the CA, the composition of the regular National Assembly is made up of the majority of the ruling party members, how could they write their own death decree? In my opinion, the whole machinery of constitutional review assembly was questionable nothing new was expected. What do we do from here? The only available hope is through the referendum, let Tanzanians reject this 1977 constitution under the cover of the proposed constitution. Enough is enough, awake Tanzanians let us act bravely.

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