After following closely the Constituent Assembly (CA) deliberations, after following Chairman Warioba’s presentation to the CA and analysing what I honestly consider as President Jakaya Kikwete’s best speech of his presidency and numerous other debates, including the one moderated by Rosemary Mwakitwange aired simultaneously on Radio One and ITV, I am inclined to believe that the CA’s initial sniping and unpleasantness, and the subsequent walkout of Ukawa, stem from the Commission’s departure from the instruments that created it, as well as the partisan attitude displayed by the CRC in this whole enterprise. Yes, there is a hidden hand of self-serving political party interests at work, but this is marginal and would not have caused the present pandemonium had the Commission conducted itself differently, i.e. by strictly adhering to its protocol.
On the basis of the Constitutional Review Act (CRA), on the basis of the Terms of Reference and on the basis of the Government Notice no.110, it was clear to everybody in the country, except perhaps the Commission itself, that the CRC was charged with the collection of public opinion and the preparation of a draft, or outline, of the Constitution which would then be handed over to the Constituent Assembly (CA) for the writing of the actual and final State Constitution which would then go to the people for a referendum. It is therefore undebatable that the Draft Constitution is not written in stone and if this work was meant to be the Constitution itself then it was a misnomer to have called it a Draft.
On August 2, 2014, the Chairman of Chadema, Mr. Freeman Mbowe was quoted in The Citizen newspaper as saying that Ukawa’s return to the Constituent Assembly (CA) was conditional on “… members of the CA respecting the people’s views as contained in the second draft of the new constitution.” But there are some factual problems to this statement. Firstly, there is no new constitution as yet – rather the CA is in the process of producing one from the current Draft. Secondly, the most contentious issue in the draft is the three-tier government recommendation, but according to the CRC’s own statistics the people did not ask for such a system; so to claim that this was the people’s choice is both cynical and flagrantly economical with the truth, to say the least. Thirdly, for Ukawa to peg their return to the CA to this condition is a clear case of holding the nation to ransom.
Aside from this, the State was very precise on the matter of what the Commission was intended to accomplish and more importantly how the Commission should go about its task. The Commission was instructed to combine both the qualitative and quantitative methods of opinion-collection, because the Focus Group system alone was not properly representative, leading more often than not to the “considered opinion” of the Commission Members, rather than the majority views of the people, the Nyalali and Kissanga Commissions being cases in point. In order to circumvent this failing the Councils’ (Mabaraza) tier was incorporated into the opinion-collection process, which was highly representative, with five people from every ward (kata) across the country, the anticipation being that, when the results of the two systems were properly integrated, then Tanzania would have the best outcome from this national consultation exercise.
But much to my chagrin, the Commission decided to conduct its affairs rather differently. From the start there was no uniform system of procedure; for instance, without any logical explanation the Commission decided to hold 12 meetings in each of the 133 districts on the Mainland and 22 meetings in each of the 10 districts in the Isles. Why the disparity? In addition, after the first phase of opinion-collection, which included Pemba, Coast, Iringa, Morogoro, Tanga, Shinyanga and Dodoma regions, Judge Warioba called a press conference at which he warned people to refrain from being used as other people’s mouth-pieces. He said: “People uttered things which, when asked to elaborate, they were unable to do so; something which suggested that they were not the sources of the ideas.” Daily News, 17 September, 2012.
Furthermore, at a round-table conference on the Union between Tanganyika and Zanzibar organised by the Media Council of Tanzania (MCT), Professor Issa Shivji spoke of people canvassing door to door. He observed: “I have received reports that there are people in Zanzibar who campaign for a contractual Union by going to people’s houses and trying to feed people with their ideas.” And in one of the CA debates a Zanzibar Cabinet Minister, Hon. Machano Othman Said, stated that, during the opinion-collection exercise in the Isles, people were transported in lorries from one meeting to the next in order to give a particular point of view. Yet, despite all these efforts, only 5% of people in Zanzibar favoured a Three-tier system of Union, while Tanzania-wide, of the 1.3 million people who gave their opinions, by all allowable means of calculation, only 17,000 actually opted for a Three-tier system. How did the Commission then possibly rate this as statistically the “overwhelming majority” view of Tanzanians?
But the most intriguing decision of the Commission was to discard the opinion of the Councils (Mabaraza), which were not only the most representative bodies, but also avoided the risk of people giving their opinions more than once in order to inflate the outcome, as allegedly happened in Zanzibar. And if the CRC thought the Councils were not intended to be taken into account in the final analysis, then why were they created in the first place? And as apparently over 52% of those Councils (Mabaraza) favoured the two-tier system of Union, it is therefore safe to claim that the Three-tier arrangement contained in the Second Draft was the wish of the Commission, not of the people of Tanzania. So if Ukawa’s walk-out from the Constituent Assembly (CA) was in the belief that they were defending the people’s choice they were hoodwinking both themselves and the nation. The Three-tier government system is the choice of the CRC, not the people, the most eloquent witness of this fact being the Commission’s own statistics.
The composition of the Commission fired high hopes and excitement in the Tanzanian people’s imaginations because it brought together some of the best retired and serving civil servants; heavy-weights like Dr. Salim Ahmed Salim, Judge Warioba himself, Judge Augastino Stephen Ramadhani and brilliant lawyers like Professor Palamagamba Kabudi and many others. Unfortunately, the CRC’s conclusions have not lived up to the people’s expectations; although the Commission Members’ integrity has not been tarnished by this failing, their judgement clearly has been. The more certain Commission Members appear in national debates justifying the Commission’s mistaken judgement, the more it looks like a conspiracy, rather than the result of genuine error emanating out of the complexity of the project itself.
Therefore, the current impasse in the CA has more to do with the unilateral decision of the CRC to impose the three-tier government system on the country, rather than with Ukawa’s intransigence, which is feeding on the CRC’s partisanship towards the tree-tier system. For example, during the debate chaired by Rosemary Mwakitwange, Mr. Humphrey Polepole insisted that the CA had no powers whatsoever to change the Commission’s Draft, which is not correct. And during the discussion held at the Blue Pearl Hotel in Dar – Es – Salaam, Hon. Tundu Lissu is quoted as saying: “… Attempts by the CCM to change the proposed three-tier government back to a two-tier government structure is ignoring the will of the people” (The Guardian newspaper of Tanzania on 28/07/14). That was again dismissing the truth of the statistics of the opinion-collection exercise, which are being used selectively, if not downright dishonestly, to represent ‘the will of the people’, when it is rather a case of representing those whose interests lie in a three-tier system for Tanzania. However, people should not blame Ukawa for the current impasse, or any other political grouping, but rather the Warioba Commission itself which has strayed so far from its original and legitimate brief.