Katiba must stand test of time

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.”

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”.

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.

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?

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.

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.

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.

From this one scenario of land conflicts, how having a Chapter on land in the proposed constitution is 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.

The author is a Dar es Salaam-based lawyer/journalist. He can be reached at mwassajingi@yahoo.com, 0756 440 175.