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The East African : Sep 1st 2014
6 The EastAfrican NEWS AUGUST 30 - SEPTEMBER 5, 2014 CONSTITUTIONALISM IN EA Tanzania’s Katiba p≥ocess dogged by lack of t≥ust, boycotts, w≥angling and deceit ANALYSIS JENERALI ULIMWENGU “Main bone of contention seemed to be the three-tier union government.” return. Committees are failing to meet because of quorum deficits. Individuals and groups are seeking court injunctions to stop Tanzania’s Katiba process. Still, what remains of the Con- M stituent Assembly carries on with its work, apparently undaunted by these difficulties. Since the start of its assignment, the CA has been dogged by controversy, set in motion when President Jakaya Kikwete went to Dodoma in March to inaugurate the Assembly, but used the occasion to criticise the draft constitution prepared by the Presidential Constitution Review Commission (CRC). The main bone of contention seemed to be the proposed threetier union government structure proposed by the CRC, headed by former prime minister and former Attorney General Joseph Sinde Warioba. The president’s remarks surprised many who saw it as a volte-face for a leader to criticise his own commission’s work. After all, the draft constitution was sent to the CA under his signature. Reports suggested President Kikwete had been “bullied” by his party bigwigs who had told him that he should never bow to policies that are not his party’s. Following acrimonious wran- Former chair of the Presidential Constitution Review Commisssion Joseph Warioba. Picture: File gling, a section of the CA calling itself the Association for a People’s Constitution, under the Kiswahili acronym Ukawa, staged a walkout saying it would not go back until the draft constitution is recognised as the only basis for deliberations. A number of organisations, in- cluding the Law Society of Tanganyika, have filed suits with the High Court seeking an injunction to restrain the CA from continuing with its work, claiming that it contravenes the provisions of the Constitution Review Act of 2012. The chairman of the CA, Sam Sitta, insists no law has been violated and says to stop the CA’s work at this point would be wasteful of both the money and the efforts already expended. “Too much money has been spent on this exercise, first with the CRC and now with this CA, and to abandon this work at this juncture would be pure waste,” Mr Sitta was quoted as saying. This view is opposed by retired auditor Arsene Margwe, whose view is that continuing with the exercise is “throwing good money after bad.” Others who have gone to court to stop the work of the CA include journalist and publisher Saed Kubenea, and political firebrand, Christopher Mtikila. All the applicants before the High Court want the CA disbanded or postponed because it seeks to undo the work done by the CRC, which, in their view, the CA is not empowered to do under the law. A senior advocate of the high Court who prefers anonymity said in most constitution-writing processes, people’s views that are received by the CRC and presented in a draft constitution to the constituent assembly can only be improved upon to make their applicability easier, not thrown overboard to incorporate new views. This was also the view expressed What shall we believe, what they told us in private or what they are now saying in public?” Former CRC member Humphrey Polepole by Kenyan legal expert PLO Lumumba when he addressed a meeting in Dar es Salaam a few weeks ago. Calling on Ukawa to go back to the CA and seek compromise, Mr Lumumba said it was unusual for the views of the CRC to be thrown out; rather, the CA should refine the draft, not alter it. He was also surprised that the CRC had been disbanded before the completion of the review proc- ost of the opposition members have walked out of meetings and have vowed never to ess and its website taken off the Internet. “The CRC should be in place, pro- viding guidance as to how it arrived at certain views, giving interpretations,” Mr Lumumba said. Members of the CRC have ex- pressed dismay at how they were treated by state authorities and the way ruling party stalwarts have attacked Mr Warioba over what was collective work by the Commission. Law lecturer Palamagamba Ka- budi, who was a member of the CRC, is especially unhappy. “People who know nothing about law and constitution-making are finding the temerity to express their stupidity because they think they are pleasing some people. We all made the decisions together, we did not even vote on anything. Everything was arrived at unanimously.” A few weeks ago, Mr Warioba led five of his former commissioners in addressing a meeting organised by the Mwalimu Nyerere Foundation. They exposed what they termed as hypocrisy of their accusers. On the issue of the three-tier union structure proposed by the CRC, former member Humphrey Polepole pointed at the double-faced nature of some highly placed members of President Kikwete’s government. “When they came to see us at the Commission, they were for a threetier structure. Now in public they are for a two-tier union. What shall we believe, what they told us in private or what they are now saying in public?” asked Mr Polepole. The chicanery will continue be- cause the constitutional process is taking place against the backdrop of the general election next year. People are posturing for posts, the most sought after being that of president. The ruling party has some 20 would-be contestants, including Mr Sitta. If he can deliver an acceptable document and go down in history as the one who gave the country a new constitution, his chances will be enhanced. If his efforts come to nought, he will be seen not only as a failure but also as a traitor to those who are yearning for a new political dispensation.
Aug 25th 2014
Sep 8th 2014