Constitutional Review Bill 2011 – a Democratic Retreat?

The Citizen (Dar es Salaam)

Elifuraha Laltaika

12 April 2011

opinion

Arusha — It is an undeniable fact that the main reason behind the demand for doing away with the current Constitution is lack of legitimacy. The current Constitution was born within an environment of exclusion whereby for unclear reasons, people were locked out of the consultation process.

In view of the above, one would naturally expect that the process leading to the enactment of the new constitution would be marked by a profound break with the past by ensuring wide scale national consultations at all stages.

One would expect further that citizens would be asked to make an informed choice as to which changes they want, based on an understanding of the issues involved. The story is however different as exemplified by matters unfolding from the drafting of the Draft Constitution Review Bill 2011.

It is as if the drafters of the said Bill religiously respect the principle of ‘Parallelisme des forms’ – meaning legal acts may generally only be modified or repealed by following the procedure used for their adoption. Drafters of the Bill are undoubtedly determined to take Tanzanians through the same terrain they traveled prior to the adoption of the current Constitution, namely systematic exclusion from the consultation process. This is a democratic retreat!

The Bill is indicative of the fact that the procedures enabling the people to become involved in drawing the constitution are made unnecessarily difficult. For example, why should the Bill be in English despite the fact that more than 80 per cent of Tanzanians cannot speak the language and therefore would naturally find it difficult or completely unable to understand its contents?

Why shouldn’t the Bill state its objectives unambiguously whether it is for revising the current constitution or enacting a new one? Why should it exclude from public discussions matters relating to the state of the Union, the presidency, and human rights, all of which ordinarily form the fabric of a constitution itself?

To make matters worse, the draft Bill is debated within unreasonably restricted and generally technocratic circles. For example, the procedure for public hearings has allowed the debates to be conducted only in Dodoma, Dar-Es-Salaam and Zanzibar. To justify this state of affairs, one may perhaps point out at issues of financial constraints or other sorts of difficulties. But as a general rule, the difficulty of a task should not dissuade Tanzanians from carrying it out, and carrying it out well.

The government should prioritise this historical watershed in the envisaged new democratic dispensation. Despite starting on however a wrong footing as suggested by the contents of the draft Bill outlined above, one must not lose sight of the fact that the need for effective and meaningful participation in this important process by Tanzanians is indeed impossible to resist and whoever denies this fact is living on the wrong side of history.

The formation of “Baraza la Katiba”, a consortium of non-governmental organizations committed to keeping an eye on the processes, demonstrations by students of the University of Dodoma, as well as the ‘national mood’ as reflected in the two constitutional workshops held at the University of Dar es Salaam – to mention but a few – attest to this fact.

To this end, drafters of the Bill should have known that the procedures currently being followed in the course of making a new constitution will affect the legitimacy of the constitution itself. The intention of the drafters can also be an indicator as to whether the proposed new constitution will indeed be a true instrument for limiting the power of the executive.

Elifuraha Isaya Laltaika is the Dean of the faculty of law with Muco and Advocate of the High Court of Tanzania.

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