Yes – the CRC did go beyond its limits

 

I read with interest the article titled: “Did Post – CRC go beyond its limits?” which was published in the “Katiba” column of The Citizen newspaper of Sunday July 06, 2014, written by my learned colleague Mr. Mwassa Jingi which was a response to my piece published on The Political Platform forum of the same newspaper on June 25, 2014 with the heading: “Tanzania draft Katiba’s missed opportunities”.  I appreciate his views in the sense that they are very deeply held and given with conviction, but with all due respect I think they are, on this occasion, misguided.

Mr. Jingi seemed overly concerned with my use of the word “sacrosanct” in my article in relation to the Union between Tanganyika and Zanzibar. However, I did not use it in the sense he alluded to; I used it in the sense of the Union being regarded, in a standard dictionary definition of the word, as “too important or valuable to be interfered with”, and not in the sense of a “holy writ or sacred cow” that cannot be altered under any circumstances. Had I used the word in this latter sense, as suggested by my colleague, then I would not have proceeded to say that the Union can only be terminated through a nation-wide, free and fair referendum, as that would have been contradicting my own statement. Moreover, although in Mr. Jingi’s words the people may have been “… given legal freedom to air their view without limits”, in reality the Commission’s legal powers were actually limited as it was proscribed from dissolving the Union.

 

To reply to the question which formed the title of Mr Jingi’s article, the Constitutional Review Commission (CRC), popularly known as the Warioba Commission, clearly did act “ultra vires”, to borrow Mr. Jingi’s words, which means going beyond its mandate or exceeding orders in layman’s language. In order to appreciate the extent to which this Commission went beyond its remit with regard to the subject of Union Structure (Muundo wa Muungano), one needs to read the terms of reference article 9 (2) (a) (d) (e)  in conjunction with Article 4 (3), and Articles 9, 10 & 17. It is also imperative to peruse the Government Notice no.110 Articles 18, 19 and 20.  All these Articles clearly confirm that the CRC had no powers at all to discuss the dismantling of the Union structure, in this case by recommending the introduction of a three-tier government system, which cannot be legally introduced without first dissolving the existing Union which would constitute a contravention of the terms of the CRA.

Dr. Laura-Stella Enonchong, a Cameroonian Constitution-making expert from the University of Warwick, who is also a member of the African Network of Constitutional Lawyers, in her article, “Tanzania’s Constitutional Review: A new Era for the Union?”, also concurs that the CRC had been urged  not to recast the Union structure. To quote her article:  “… The Constitutional Review Act (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”.

Mr. Jingi asserts that the “CRC did not propose that we should do away with our Union; rather it proposed a change of its structure for strengthening of the Union”. This is disingenuous, to put it mildly; for a two-government union to be strengthened would surely be to proceed to a system of single government, not to backtrack to a three-tier system. However, since politics is the art of the possible and it seems the time for a single government system in our country is not yet here, then to consolidate this Union can only mean the rebuilding of the two-government system,  leaving out all sources of rumblings – the so called “kero”.

Mr. Jingi then continues to state that: “What is forbidden by law was any proposal that by express letter or its implication would mean dissolution of the Union between Tanganyika and Zanzibar.” But this is precisely the crux of the problem; the three-government system will choke off the union by instalments – drip by drip; and the proponents of this proposed new system are fully aware that that is the end-game – killing the Union indirectly and by ‘implication’.

Therefore, if during the opinion-collection exercise, the CRC had found out that many people expressed the desire to change the Union format (which the Commission’s own statistics confirm was clearly not the case) the response should have been either to state that this issue was not within the Commission’s remit, or to go back to the Authority that created the Commission for briefing on this new dimension; anything short of these measures was in fact trespassing beyond the Commission’s parameters.

Would a three-tier system kill the Union?

On 26th October 2011, the Chairman of the CRC, Judge Warioba, was quoted as saying: “… Frankly, to want a three-government system is to break up the Union.” Of course Mr. Warioba is entitled to change his mind or view on the subject, but his apparent change of mind does not however affect the fact that that his statement remains the truth.

Even more telling is the statement made in the Constituent Assembly by one of the staunchest supporters of the Union of Contract (Mkataba) system, Hon. Rukia Kassim Ahmed when she refuted accusations of shilly-shallying for having changed her support from the Contract (Mkataba) to a three-tier government system. She said: “… We haven’t changed our stand because the Contract system of Union and the three-tier government system are one and the same.” While accepting that her statement was made in good faith let us focus on just what proponents of the Contract system want which is a government of Zanzibar with all the paraphernalia of statehood, including a seat at the United Nations, full citizenship rights with passport and Immigration control, national political parties and elections, a national currency, Central Bank and Finance Ministry, independent Foreign and Internal Affairs Ministries and an Independent Security system. Now, if all these features are taken out of our existing Union, then just what will remain? Frankly, some leaders in Tanzania want the Union scuppered and they are not being subtle about this. However, our Union belongs to the people of Tanzania and not a bunch of leaders. Therefore it should only be ended legally by a majority vote of our people at a national referendum.

The Country requested the Commission to collect views and write a “Draft Constitution”, not “The Constitution”, and a “draft” always means a tentative or preliminary version, not the final product, and can therefore be adapted and changed. Aside from this, the work of writing “The Constitution” is squarely vested on the shoulders of the Constituent Assembly (CA) using the Commission’s Draft as its reference or working paper, with the CA holding full powers to make all necessary changes.  The CRC is now defunct; however, even if it was still in existence, it would have no powers to dictate anything to the CA or direct it as to what it can and cannot adopt from the Commission’s Draft.

Had the CRC been mandated with the writing of “The Constitution” itself then it could have been sent straight to the people for a referendum. What is the use of the CA if it is not empowered to change anything? If it was only a question of correcting grammar then surely the country could have needed only the services of a handful of language experts and not the 629 men and women who make up the Constituent Assembly. It would be an inconceivably criminal waste of tax-payers’ money to bring together these highly talented and experienced men and women of the Constituent Assembly for several months, paying them each a sh.300,000/= daily stipend, for the work of reshuffling paragraphs and putting a coma here or a full stop there into the Draft Constitution. This would be an insult to the intelligence of the CA members, as well as being a monumental waste of time and money.

In a nutshell, let me make the following comments: all Tanzanians should stop twisting arguments for the sheer scoring of points; the issues at stake here are simply too important for such games. Tanzanian politicians of all political parties and persuasions should stop playing politics with peoples’ lives, futures and livelihoods and treating their people as pawns on a political chess-board. Tanzanians want, expect and deserve a Constitution that will safeguard their future economic survival; that is one which will put a stop to the current doling-out of our farmlands to foreigners and guarantee access to land for all our rural people and one which will provide employment or a full welfare state for our jobless and landless population, the failure to meet such basic requirements by the government of the day being subject to impeachment.

The proposed creation of separate governments for Tanganyika and Zanzibar under a three-tier system will not make our people prosperous, or even slightly improve their standard of living, unless these real and pressing issues of land reform and social progress are urgently addressed; it will just be pandering to the designs of self-declared leaders, who by large, are not speaking for the people, but for themselves.