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7.02.2012

Tanzania’s Constitutional Review: A New Era for the Union?


Tanzania seems poised to transform its democracy into a constitutional democracy of the 21st Century. The issue of constitutional review has occupied political discourse in Tanzania since the 1990s and incumbent President Jakaya Kikwete made a firm commitment to bring to fruition the issue of constitutional review when he was re-elected in 2010. In March 2011, parliament passed the Constitutional Review Act (CRA) No.8, amended in February 2012 by CRA No.2 aimed at regulating the constitutional review process. That process was finally set in motion in April 2012 following the appointment of the Constitutional Review Commission pursuant to the CRA 2011, ss 5 & 6 (as amended by CRA 2012, s.2). This marks a great step towards advancing and consolidating Tanzania’s democracy, particularly given the orientation of the process towards broad popular participation through consultation and public debates. Before examining the mandate of the Commission and some of the salient issues for constitutional amendment it may be useful to provide a very brief historical background.

Historical Synopsis

The United Republic of Tanzania, as it is known today, is a union of the former British Trust Territory of Tanganyika which became independent in 1961 and the neighbouring British Protectorate Island of Zanzibar which gained independence in 1963. Both territories merged in April 1964 under Acts of Union forming the United Republic of Tanganyika and Zanzibar and later in October the Union adopted the appellation United Republic of Tanzania. An interim constitution was adopted which in effect was an amended version of the 1962 constitution of the former Republic of Tanganyika (Acts of Union No. 22, s. 5). This was meant to govern the Union until a constituent Assembly was summoned with powers to ratify and adopt a new constitution for the Union (Acts of Union, s. 9(1)). A Constituent Assembly Act No. 18 of 1965 later provided, in s.2 that, the President was not under an obligation to appoint a constitutional review commission or to summon a constituent assembly for the purpose of drafting a new constitution within one year of the commencement of the Union. However, he could subsequently, after agreement with the vice-president, appoint such a commission or summon an assembly at an opportune time. It would appear that, that time never emerged and the interim constitution was in force until 1977 when a permanent constitution was adopted. The 1977 Constitution, with its subsequent amendments, is the current Constitution of Tanzania.

Under the 1977 Constitution, the Head of State and head of Government of Tanzania is the president (s. 33(1) (2)) assisted by a vice-president (s. 47(1)). There is a Prime Minister of the Republic appointed by the President (s. 51(1)) the former is leader of government business (s. 52(1) (2)). There is a National Assembly (Bunge) which enacts legislation for the entire Republic and mainland Tanzania (ss. 62(1) & 64(1)) and a Cabinet composed of the Vice-President, the Prime Minister, the President of Zanzibar and all ministers (s. 54(1)). While the government of Tanganyika was subsumed under the government of the Republic in 1964 (Acts of Union, s.7. cf s. 34(1) 1977 Constitution) Zanzibar maintained an autonomous status, with its constitution, a House of Representative, a president, a revolutionary council and a judiciary (1977 Constitution, ss. 64(2), 102, 103, 105, 106 and Constitution of Zanzibar, ss. 26(1), 42(1), 43(1), 63(1) and 93(1)).Thus, Tanzania operates under two governments, the government of the United Republic and the Revolutionary Government of Zanzibar.

The Constitutional Review Commission and the Review Process under the CRA

The aims of the CRA are contained in s. 4 (a)-(i) which include the establishment of a Constitutional Review Commission and its Secretariat, prescribe their terms of reference, establish a mechanism for ensuring public participation in the review process, mechanism for scrutinising a draft bill, summoning a constituent assembly, organising a public referendum to adopt a draft bill.

In that respect, the Commission has been accorded broad powers to act independently (s.10) in the coordination of public awareness programmes on the existing Constitution, collection of public opinion, organisation of meetings, making of recommendations and submitting of reports to the relevant constitutional organs and to prepare a draft Constitution Bill (ss. 9(1) (a)-(c), 17(2) (a)-(f). A fundamental aspect which pervades the constitutional review process under the CRA is public participation. That can be perceived from the various provisions authorising the Commission to make the utmost use of its authority to collect and analyse public opinion. For instance, under s. 17(3) (a)-(b) the Commission may request municipal, local and traditional executive officers in the Mainland and Zanzibar to organise public meetings for the purpose of collecting public opinion. The public are further empowered to participate through meetings organised by interest groups, associations or institutions and views expressed by participants in such meetings are forwarded to the Commission (s. 17 (11), 18(6)). Opportunities for public participation are also enhanced through public fora for discussion of a draft Constitution. (s. 19 (3)-(5). The requirement for submitting a draft Constitution to a referendum (s. 26) is another step towards empowering the public to define the normative standards by which they desire to be governed. Hopefully, this process will accord Tanzanian’s adequate opportunity to engage in the review process.

Some Key Subjects for Reform


Undoubtedly, a vast number of issues are likely to dominate debates on what exactly constitutes the subject of constitutional reform. Just a few will be highlighted here.

Perhaps one of the major aspects to require reconsideration will be the state of the Union. In particular, the reinstitution of the Government of Tanganyika so as to create a federation of three governments and enhance the status of the Mainland vis-à-vis Zanzibar which operates under an autonomous government. The need to re-examine the state of the Union has been additionally fuelled by constitutional reforms in Zanzibar in 2010 through which Zanzibar has be described as a ‘sovereign state’ within the Union. In the light of those reforms, is the Union threatened by Zanzibar’s status and does it affect the original purport of the Acts of Union? Will the creation of a Tanganyika government undermine the autonomy of Zanzibar or strengthen the Union? The CRA for one, enjoins the Commission to observe (amongst others) the sanctity and inviolability of the Union, the existence of the Revolutionary Government of Zanzibar and national union, cohesion and peace (s. 9 (2) (a)(d)(e)).

Another major aspect to be discussed would possibly be the extent of presidential powers- limiting those powers and reconsidering the whole separation of powers system. This implies a consideration of the system of government and the way forward. Would it be a presidential system or parliamentary system? Presently, Tanzania operates a fascinating ‘hybrid’ system composed of elements of a parliamentary and presidential system and a peculiar Parliament consisting of ‘two parts’- the National Assembly and the President (1977 Constitution, s. 62(1)). Given the nature of the separation of powers system, the president has been imbued with wide ranging powers which many see as an ‘imperial presidency’. This obviously is fundamental to the democratic future of Tanzania. Yet, the CRA enjoins the Commission to observe the sanctity and inviolability of the executive, the legislature and judicature and the presidency (s. 9 (2) (b) (c)).

A final issue to mention here relates to reform of the electoral system. In that respect, two aspects may be mentioned. The first is the possibility of a complete overhaul of the electoral system in view of the fact that the 1977 Constitution was adopted against the backdrop of a one- party system from which Tanzania has now moved away. Given that it is now a multi-party democracy there is perhaps need for a fresh start to construct a democratic system based on contemporary political practice in Tanzania. Secondly, under the current system special provisions are made to ensue that women are reserved seats in parliament to promote gender equality (1977 Constitution, ss. 66(1) (b), 78(1). It may be necessary to review that practice to ensure compatibility with the democratic principles by which Tanzania purports to be governed.

Some Perceived Difficulties


Despite the obvious commitment to ensure broad public participation, there is some reason to be apprehensive of a possible restriction on the scope for free public participation. Firstly, the CRA makes it incumbent on individuals or organisations wishing to organise sensitisation events to inform the relevant public authorities or the Commission and also disclose the source(s) of funding for their events (s. 17 (9) (a) (b)). In addition, the CRA provides that the Commission ‘may’ authorise such events (s.18 (6)) which implies there is a possibility for the Commission to refuse authorisation.

Secondly, under the CRA neither the conduct of the review process nor the constitutionality or legal propriety of the Commission can be subject to judicial review (s.20 (1)). Any person contravening s. 20(1) shall be liable to a fine or imprisonment term (s. 20(3)). That is perhaps a novelty in criminal law as it in fact creates a crime for bringing an action which is inherently void. Moreover, any person who prevents, by conduct or omission, incites, obstructs, or hinders any member of the Commission or Secretariat from performing their duties commits a criminal offence (s. 20(2)). Although these provisions may be safeguards to allow for a smooth process of review, they can be restrictive to public participation if these offences are not clearly defined.

Another aspect which may adversely affect the review process is the vagueness as to the extent or scope of the reform. While it is generally accepted that the 1977 Constitution is the subject of reform, there is no clarity as to the scope of what is to be analysed for the purpose of reform. For instance, under s. 9(1)(b) the Commission is mandated to examine and analyse the consistency and compatibility of the constitutional provisions relating to the sovereignty of the people, political systems, democracy, the rule of law and good governance. Although the constitution in question may be axiomatic, that possibility is complicated by other provisions. In particular, the Commission is required to examine and analyse public opinion on all matters including the White Paper No. 1 of 1962 on the Establishment of the Republic of Tanganyika, the Constitutions of Zanzibar, 1979 and 1984, the Independence Constitution of Tanganyika, 1961, the Articles of Union and the 1977 Constitution (s. 18(2) (a)-(k)). Admittedly, these documents all have a fundamental connection to the constitutional structure of the country and their analysis may provide a more thoroughgoing review process. Nevertheless, there is a distinct possibility of engendering confusion in the population as to what is actually being reviewed and for what purpose. It creates a formidable responsibility on the Commission and those organising sensitisation campaigns to ensure a thorough education of the public to minimise ambiguity and confusion- circumstances which may pre-empt public support for and participation in the review process.

By and large, the constitutional review process envisaged under the CRA appears to provide some cautious optimism that it will lead to the drafting of a ‘Tanzanian’ constitution influenced by the peoples’ aspirations as to the direction of their democracy. The process is intended to terminate in April 2014 with the adoption of a new constitution to coincide with the 50th anniversary of the union of Tanganyika and Zanzibar.

--Laura-stella Enonchong, University of Warwick, African Network of Constitutional Lawyers

3 comments:

  1. A very intriguing article. What strikes me a about the article is the manner in which the constitutional review is carried out. Public participation plays an important role, which is backed by various provisions authorising the Commission to make the utmost use of its authority to gather and analyse public opinion. It is interesting to learn that under s. 17(3) (a)-(b) the Commission may request municipal, local and traditional executive officers in the Mainland and Zanzibar to organise public meetings for the purpose of collecting public opinion. This is very important for 'participatory constitutionalism'. The only worry i have is that, i hope these views are really taken into consideration. Opinion can be taken from the people and not eventually utilised. All the same the case of Tanzania is an example for other Africa countries to emulate.

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  2. While a cursory rendering of the constitutional review process may appear optimistic, it is no way a ‘peoples’ process. First off, many had called for process that would lead to a ‘new’ constitution and not necessarily a ‘review’ of the current constitution, the idea being it was time for a radical overhaul of Tanzanians mother law. Secondly the process appears to have been ‘hijacked’ from the hands of the opposition and civil society groups and firmly thrust in the cusp of the government and ruling party CCM. This has raised serious issues of legitimacy of the process.

    This can be further seen in the composition of the commission. Consider for example the Chair of the Commission who is a well-known CCM card carrying holder or the Deputy Chair of the Commission and former Chief Justice who presided over the Independent Candidates Case in which the bench unanimously decided against allowing independent candidates to vie for political office. The Court of Appeal decision which has since been highly criticised was one of the major catalysts for renewed calls for constitutional review in 2010 and is now being challenged before the African Court on Human and Peoples’ Rights.

    More importantly and as rightly pointed out by the author the narrow scope of the review process is seen by many as being a missed opportunity to address the most contentious issue, that of the state of the union between the mainland and Zanzibar. It is unclear how the review process will deal with the thorny issues of revenue sharing with the mainland following the finding of oil and gas reserves off the coast of Zanzibar or issues of religious tolerance given the increasing calls for rule by sharia law in predominantly Muslim Zanzibar.

    In short this review process will take Tanzania forward as there will likely be marginal improvements in reforming governance institutions, narrowing presidential powers and entrenching fundamental human rights. However, the lack of legitimacy of the process will affect the extent to which any new constitution will effectively resonate with Tanzanian citizenry. It will also be interesting to see to what extent a progressive review of the electoral process will impact the 2015 polls. The challenge will be how to get the best out of the process.

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