Guests await the handing over of copies of the proposed constitution to
President Jakaya Kikwete and
Dr Ali Mohamed Shein at Jangwani grounds in
Dodoma at the beginning of last month.
By Mwassa Jingi,Dar es Salaam. The proposed constitution in its apparent form looks so nice with full of
details, but it
goes contrary to what our ruling Chama cha Mapinduzi (CCM) proposed from the beginning vide their
document, which, among other things, criticised the draft constitution that it was too detailed contrary to a
well-known culture of writing constitutions worldwide. Having this in mind, we expected the proposed
constitution to be precise and concise. In today’s article, I want to share with you my views on the pragmatism
of the proposed constitution and its implementation thereafter if it passes its final test.
CCM’s document says in Kiswahili: “Katiba ni
sheria kuu na utamaduni unaozingatiwa duniani kote
ni kuifanya iwe rahisi kueleweka lakini ni vigumu kuibadilisha. Rasimu hii kama ilivyokuwa Rasimu
ya Kwanza imebeba mambo mengi mno na yanayokwenda kwa kina mno kwa sheria kuu. CCM
inaamini bado ipo haja kwa Rasimu ya Tatu kuzingatia suala hili ili yale ambayo yanaweza kutungiwa
sheria, ifanyike hivyo. Sheria za kawaida ni rahisi zaidi kuzifanyia marekebisho kuliko Katiba.”
ni kuifanya iwe rahisi kueleweka lakini ni vigumu kuibadilisha. Rasimu hii kama ilivyokuwa Rasimu
ya Kwanza imebeba mambo mengi mno na yanayokwenda kwa kina mno kwa sheria kuu. CCM
inaamini bado ipo haja kwa Rasimu ya Tatu kuzingatia suala hili ili yale ambayo yanaweza kutungiwa
sheria, ifanyike hivyo. Sheria za kawaida ni rahisi zaidi kuzifanyia marekebisho kuliko Katiba.”
English translation: “A constitution is the
supreme law and an inherent culture that is used in making
constitutions worldwide is to make it easy and readable but hard to change it. This second draft
constitution like the first one is full of details which are not needed in the constitution as the supreme law.
CCM believes still that there is a need for the third draft constitution to consider this proposal so
that the things which can be made law through legislation should be done in that way.
Ordinary laws are easier to amend than constitutions are”.
constitutions worldwide is to make it easy and readable but hard to change it. This second draft
constitution like the first one is full of details which are not needed in the constitution as the supreme law.
CCM believes still that there is a need for the third draft constitution to consider this proposal so
that the things which can be made law through legislation should be done in that way.
Ordinary laws are easier to amend than constitutions are”.
The proposed constitution is the product of CCM
due to the fact that, over 80 per cent the
members of the Constituent Assembly (CA) were from CCM itself. When CCM members
were saying that the third draft constitution was supposed to be concise and precise, they had in
mind what is now know as the proposed constitution, a document which is even much more detailed
than the draft constitution, which they criticised as being full of trivial matters and was not even worth
to be called the draft constitution.
members of the Constituent Assembly (CA) were from CCM itself. When CCM members
were saying that the third draft constitution was supposed to be concise and precise, they had in
mind what is now know as the proposed constitution, a document which is even much more detailed
than the draft constitution, which they criticised as being full of trivial matters and was not even worth
to be called the draft constitution.
Nevertheless, the chairperson of the CA drafting
committee was Andrew Chenge, a former
Attorney General and a man who is believed was a central figure in preparing CCM’s document,
which was used by the CA as a guide to determine both the structure and contents of the proposed
constitution. The proposed constitution is full of trivial issues more than that of the erst, while Warioba
Commission. Let’s take a look at the two documents. The draft constitution has 17 Chapters and 271
Articles; but the proposed constitution has 19 Chapters and 296 Articles. Which between these two
documents is more detailed than the other? Were CCM so realistic in criticizing Warioba’s draft
constitution as too much detailed?
Attorney General and a man who is believed was a central figure in preparing CCM’s document,
which was used by the CA as a guide to determine both the structure and contents of the proposed
constitution. The proposed constitution is full of trivial issues more than that of the erst, while Warioba
Commission. Let’s take a look at the two documents. The draft constitution has 17 Chapters and 271
Articles; but the proposed constitution has 19 Chapters and 296 Articles. Which between these two
documents is more detailed than the other? Were CCM so realistic in criticizing Warioba’s draft
constitution as too much detailed?
The CCM-based proposed constitution is full of
unnecessary details. Since CCM was against the
CRC’s draft constitution, which was based on a programmatic category, according constitutional
experts like Prof Palamagamba Kabudi, we thought CCM’s constitution would base on an
instrumentalist category of constitution. The two more Chapters in the proposed constitution
against the draft constitution, and in particular Chapter Three, which enshrines matters pertaining
to land, natural resources and the environment was included as a way of appeasing ordinary
Tanzanians so that they may think that the CCM government is so concerned about their general
welfare and development and that the new Chapter added in the proposed constitution is going to
solve their land problems. Unfortunately, it won’t.
CRC’s draft constitution, which was based on a programmatic category, according constitutional
experts like Prof Palamagamba Kabudi, we thought CCM’s constitution would base on an
instrumentalist category of constitution. The two more Chapters in the proposed constitution
against the draft constitution, and in particular Chapter Three, which enshrines matters pertaining
to land, natural resources and the environment was included as a way of appeasing ordinary
Tanzanians so that they may think that the CCM government is so concerned about their general
welfare and development and that the new Chapter added in the proposed constitution is going to
solve their land problems. Unfortunately, it won’t.
From CCM’s own argument, that once a constitution
is full of details like now their proposed
constitution is not worth a name of constitution. Thus, if the proposed constitution becomes
our new constitution after the referendum it won’t be implementable because it was not
well-prepared. They said they didn’t like the CRC’s draft constitution because it was too
programmatic, but theirs is even worse for the same reasoning. The proposed constitution
was prepared just to appease people that they had accommodated their views, but in reality
our regime so far and in the long run will not be able to implement what they have filled in the
proposed constitution.
constitution is not worth a name of constitution. Thus, if the proposed constitution becomes
our new constitution after the referendum it won’t be implementable because it was not
well-prepared. They said they didn’t like the CRC’s draft constitution because it was too
programmatic, but theirs is even worse for the same reasoning. The proposed constitution
was prepared just to appease people that they had accommodated their views, but in reality
our regime so far and in the long run will not be able to implement what they have filled in the
proposed constitution.
The implementation of constitution is eased by the
enactment of laws that will follow after the new constitution.
Let’s take land conflicts, which are almost in every part of this country. These are not happening because
we do not have the constitution or laws regulating land. We have the constitution and good policies
and laws in place. What is lacking now will continue lacking even after the new constitution.
As CCM well argued, already we have land laws; why then create a Chapter on land in the
proposed constitution? If there is an area, which had so far been dealt with, using many pieces of
legislation and a well-devised system of resolving conflicts out of an ordinary court system is land.
The land regime was reformed in the 1990s, whereby the Land Act, 1999 and its sister, the
Village Land Act, 1999 were enacted just to mention a few. Using these laws, the land regime was
restructured and taken out of the control of very powerful person called the Commission for Land
and his powers in holding land were legally decentralised down to village level, where thereto villagers
through their own administrative system own and have
the full mandate to use and dispose land according to law. Tragically, with all these well-intended
reforms, land conflicts are still occupying big coverage in our daily media reports.
Let’s take land conflicts, which are almost in every part of this country. These are not happening because
we do not have the constitution or laws regulating land. We have the constitution and good policies
and laws in place. What is lacking now will continue lacking even after the new constitution.
As CCM well argued, already we have land laws; why then create a Chapter on land in the
proposed constitution? If there is an area, which had so far been dealt with, using many pieces of
legislation and a well-devised system of resolving conflicts out of an ordinary court system is land.
The land regime was reformed in the 1990s, whereby the Land Act, 1999 and its sister, the
Village Land Act, 1999 were enacted just to mention a few. Using these laws, the land regime was
restructured and taken out of the control of very powerful person called the Commission for Land
and his powers in holding land were legally decentralised down to village level, where thereto villagers
through their own administrative system own and have
the full mandate to use and dispose land according to law. Tragically, with all these well-intended
reforms, land conflicts are still occupying big coverage in our daily media reports.
From this one scenario of land conflicts, how
having a Chapter on land in the proposed constitution is
going to solve land conflicts?
going to solve land conflicts?
The problem we have on land is neither policies
nor laws. It’s leadership. We might have the best
constitution, but if we do not have responsible leadership from top to bottom nothing will change.
constitution, but if we do not have responsible leadership from top to bottom nothing will change.