The People’s Constitution: Fact or Fiction?

Yesterday, June 3rd 2013, the draft of Tanzania’s new constitution (to read it for yourself, click here) was finally unveiled at the historic Karim Mjee grounds in Dar es Salaam. It was, as Ahmed Salim tweeted, a historic day for Tanzania. Like many Tanzanians, yours truly has spent practically the last 24 hours reading the draft constitution. Admittedly, I have not read it all, word-for-word. And like many other Tanzanians, media coverage has biased me to focus on the major highlights covered in the popular press.

Warioba and his constitutional review commission have presented their draft after collecting the views of the people. They conducted a total of 1,942 meetings, attended by 1,306,500 people, with 395,000 people providing face-to-face interviews, with 160 focus groups providing their views, and 43 current and retired national leaders. If these meetings took on average 2 hours, that constitutes 233,040 minutes or approximately 2,590 soccer matches. The amount of attendees (1,306,500 people) at these meetings is equivalent to Kampala’s population, roughly.

The process has now brought forth the draft that we now have. And I present the major highlights, along with whether these align with people’s preferences (as well as my opinions, obviously). To gauge people’s preferences, this post will cite findings of the 5th Round Afrobarometer survey conducted in Tanzania, last year by REPOA. Yours truly was involved in analyzing the data, with respect to the constitutional review in Tanzania, just this past February, but I will spare the reader all the details and encourage the reader to read further details here with press release here.

Please note that the sample of respondents of the survey was selected at random from the adult Tanzanian population, and is nationally representative. All results presented are accurate to a statistical margin of error of 2%, at the 95% level of confidence. In short, these results represent the views of Tanzanians (I am willing to engage in constructive debate on the representative-ness of the sample, on logical grounds. Dogmatic professions of the lack of faith in the survey alone, am afraid does not constitute constructive debate. Statistics is not a religion, and does not need “belief” in it, please. It’s just science.).

Without further ado, I present the following:

1. On the Union: The draft constitution proposes three governments (in Article 57(1) of the draft constitution), one each for mainland and Zanzibar, with a union government that supercedes the others on “union matters” (not very clear what constitutes union matters, besides perhaps defense and national treaties).

Looking at the Afrobarometer data, we find that a majority of people certainly do not want the union between Tanganyika and Zanzibar to be dissolved. In fact, only 22% of those polled want the complete dissolution of the union. The remaining 78% are varied in what should change, if anything at all. About 12% want no change to current set up. While almost half (43%) want increased autonomy for Zanzibar within the union, and only 14% want three governments, as proposed in the new draft constitution. The remaining folks polled, roughly 10%, want Zanzibar absorbed into a single unitary union. So on this at least, those who want three governments, as proposed in this new draft constitution, will have two options to gain a majority. They can convince either the increased-autonomy-for-Zanzibar-group to form a majority (i.e. 50% plus one) or 100% support from all of the other groups including at least 68% of the complete-dissolution-group. This is a tall order.

Moreover, this draft constitution fails to answer some puzzling questions. How will the respective parliaments of mainland and Zanzibar be organized? How many MPs in each? How will constituencies be divided in each? Why are we not referring to Tanzania Mainland and Tanzania Isles, or Zanzibar and Tanganyika, for that matter, in the original manner of the union? Besides the union matters which the Union parliament will supercede the other parliaments, are these parliaments related in any other way? For instance, is the Union the Upper House, so that everything must pass through it, and vice versa with the “Lower Houses” in mainland Tanzania and Zanzibar? Why is the mainland parliament called parliament, but the Zanzibari parliament called council? The language assumes some differential relevance/power of the two houses, or am I just being a grammar/language Nazi? None of these details, among others am sure, are mentioned in the draft. Future iterations of the draft must address these issues.

2. On the Separation of Power: The draft constitution excludes eligibility of Members of Parliament (MPs) from being Cabinet Ministers (Article 94(2) of the draft constitution).

Looking at the Afrobarometer data, we find that 54% of those polled agree with having Cabinet Ministers be selected outside of the pool of MPs. Not an overwhelming majority, but a majority nonetheless. In this respect, the draft constitution does represent the views of the majority of Tanzanians.

The issue of separating power through having ministers be appointed from outside of parliament has reverberations beyond the face value of this change. Coupled with MP tenure limits (see next paragraph), this would radically reduce the pool of available ministerial candidates of whatever ruling party at any point in time, for each subsequent political term. After a while, the probability that moderates or candidates sympathetic to the opposition party must go up, if we assume the ruling party cannot possibly have an infinite supply of suitable candidates. Current opposition party supporters seem to have this hunch as well, am assuming, because in the Afrobarometer data CUF as well as CHADEMA supporters were more than twice as likely to support the appointment of Cabinet Ministers outside of parliament, than their CCM colleagues.

The draft also proposes no more than 15 Ministers in a single Cabinet (Article 94(2) of the draft constitution), a 25-year minimum age limit for contesting a parliamentary seat (Article 93(2) of the draft constitution)—– to my great pleasure—–and finally, three 5-year term limits to an MP’s tenure (Article 117(2) of the draft constitution). Am not sure whether term limits to MPs’ tenure is a good or unnecessary thing. In any case, this brings me to the next point.

3. Executive Power: In general the draft constitution has retained many restrictions on presidential powers, and added several others.  Article 76(2) retains the 2-term Presidential limit. The President is further constrained in declaring war with an aggressor to only do it through parliament unless the country is under imminent threat or has already been attacked (Article 80(1) of the draft constitution).

Looking at the Afrobarometer data, we find that 87% of those polled want to retain the 2-term limit on the President’s tenure, as is the status quo 1977 constitution and also part of the draft constitution. There is no contest on this one. The people got exactly want they wanted. And rightly so.  Further still, the constitution has largely curtailed executive power by shoring up the High Court and involving more Presidential appointees to be confirmed in parliament and/or in conjunction with some other independent entity/institution, including Cabinet Ministers (Article 93(1) of draft constitution), High Court Justices (Article 151(1) of the draft constitution), Auditor General (Article 200(1) of the draft constitution), among many other appointments.

That’s the good news. The bad news is that the process of impeaching a sitting President is laborious and set up for failure. I strongly encourage readers to read the full Article 84 on this, with all its parts for a complete picture. In short, in order for parliament to impeach the sitting president one must find and use the “impeachinator” (a word I just invented, all rights reserved). To find it, and thus use it, one must recruit the likes of Prof. Robert Langdon (Dan Brown‘s fictional Harvard university professor), Indiana Jones (George Lucas‘ famous professor fictional character) and of course Ian Flemming‘s Agent Double-O-Seven, popularly known as James Bond. Of course.

Okay okay. It perhaps is not that difficult to impeach the President under the draft constitution’s framework, but certainly hard enough. Well, let me let the reader judge for herself with a summary of the process below:

a. Motion in parliament by an MP must be tabled.

b. 75% majority to affirm motion and agree to create “investigative” committee (IC) which is made up of Union Chief Justice, mainland Chief Justice, Zanzibar Chief Justice, and at least 6 other members appointed by the Speaker.

c. During IC’s deliberation, President gets leave of absence. Vice President (VP) becomes interim President.

d. Within 7 days of IC’s convening, work must begin, and no later than 90 days, a report must be submitted to Speaker.

e. After which, parliament conducts a vote with an “ay” or “nay”, and if 75% vote “ay” for impeachment, then it’s a done-deal for the President, losing her pension, among other Presidential dues.

f. VP becomes President.

The summary above is just that: a summary. The process is more convoluted than I have presented it. The impeachment process is too long and possibly creating various opportunities for the President to exert his/her influence to affect the outcome of the vote. For one, why do we even need an IC in the first place? Just do an “ay” or “nay” vote as soon as the motion for impeachment gets support from other MPs, says an anarchistic me. And why 75% to oust the Boss, when electing him/her took just 50% plus 1? 50% plus one, perhaps is little, but isn’t 75% too much?

I’ll leave the responses to all these to the reader.

4. Citizenship: The draft constitution ignores any new changes to the idea of who constitutes a Tanzanian citizen, particularly the issue of dual citizenship, which the majority of Tanzanians support.

Looking at the Afrobarometer data, once again, we find that Tanzanians hold relatively liberal, inclusive and fluid definitions of who constitutes a Tanzanian citizen. When asked whether a Tanzanian citizen should be allowed to retain his/her citizenship even after gaining another citizenship, 77% said “yes”, against 23%. On all other scenarios of citizenship, including a foreign wife, a foreign-born child, and so forth, those who responded “yes” outnumber the “no’s”. Interestingly, people feel more strongly against having foreign husbands be citizens relative to foreign wives. Something about our macho-male-dominated society perhaps? In any case, a topic for another post.

5. Elections: Of course, the other issues include the electoral space. In this case, the draft constitution has some welcome things including most importantly, the fact that independent private candidates can now run for the Presidency, without any affiliation to a political party (Article 75, part (d) of the draft constitution). Moreover, presidential candidates can appeal electoral results, within seven days to the High Court and decisions have to be made to resolve the appeal within 14 days (Article 78(3) of the draft constitution).

A confusing wording for me—–and perhaps a reader can help clarify—– is under Article 78(4) that says that the High Court can make a decision on this appeal without any explanation as to the reasons behind the appeal and those reasons to be provided within 30 days of the decision being made. Does this mean no explanation at all? No explanation at first, but explanation within 30 days? If it is the former, then once again, this appeal process could easily be captured by the relevant powerful stakeholders within the ruling elite.

6. All others: The draft constitution does other great things, including the establishment and shoring up the independence of several key institutions, including the High Court (Articles 143(1) and 145(1) of the draft constitution), Electoral Commission (Article 181 of the draft constitution), Ethics in Leadership Commission (this is my English translation of the original Swahili text from Article 188 of the draft constitution), Human Rights Commission (Article 194(1) of the draft constitution) among other relevant entities. In the end, of course, it will be up to us, the citizenry, to ensure the government and the organization of our state adhere to those words, lest the constitution simply be a dead document.

There are many other things in the draft constitution that I will let the reader read for herself. For the sake of time and brevity, I have only presented the most important ones (to me at least) and encourage the reader to suggest anything else that I have missed by commenting below. In conclusion I would like to remind the reader of my post, Lucky Number 13, 4 months to the day earlier this year. In it, among other things, I discuss the constitutional review. In it, I push for less powers to the President, have Cabinet Ministers be appointed from outside of parliament, three governments for the union arrangement, the introduction of a federal system of government with multicameral (perhaps bi- or tricameral) houses of parliament, among other things. On the MP-Cabinet Minister debate, am very pleased with the draft constitution, not to mention the three governments (but need more details in future drafts), but wish to pursue other things, including the organization of government. However, I think it is a good first draft. Whether or not the constitution is of the people’s preferences, is up for debate. One thing we can all agree that it still needs several iterations before it can truly be the People’s Constitution.