In part one of this article last week, I explicitly put it clear that I want to critically look into the document of Chama Cha Mapinduzi (CCM), whose contents and its context aim at overhauling the Draft Constitution on the pretext that if the contents are left as they stand it will result in giving Tanzanians a very weak parent law by creating a Union structure of three governments, which will be a leeway for breaking-up of the Union. Thus, CCM proposes, among others things, to retain the current Union structure, but slightly adjust and amend it to make it even better. Does such an argument hold water? As we will see in the series of these articles, it doesn’t.
CCM’s arguments against the Draft Constitution are weak, so they do not justify the party’s stand to continue defending their interests vis-à-vis the contents and context of the Draft Constitution, which we all have good reasons to believe that they come from Tanzanians themselves through the Constitutional Review Commission (CRC), which was mandated to collect, research, review, analyse and compile public views.
CCM’s document contains proposals aimed at making them part of the prospective Constitution. The party underpins its arguments in the following areas: (i) proposals which were wholly accepted by the CRC; (ii) proposals, which were partially accepted by the CRC and to which CCM leaders are satisfied with such an inclusion; (iii) new things (Articles), which were not in the first Draft Constitution, but were added by the CRC in the second Draft Constitution; and (iv) CCM’s analysis and recommendations for the retention of a two-government system in the Union.
From the above areas, CCM’s document is divided into three main parts. The first part explains how some of their proposals were included in the second Draft Constitution (they do it Article by Article). It says that about 17 Articles, which CCM proposed to be changed by the CRC were changed accordingly and CCM is happy with that.
The second part of CCM’s report is about the challenges that will face the Union under the structure of three governments as proposed by the CRC in Draft Constitution. These challenges, according to CCM, are based on a legal system, costs, and institutional based systems that will be involved in building national unity. As we analyse this document we will look into CCM’s arguments.
Third, the CCM’s document contains a conclusion and recommendations for adjusting or amending the current structure of the Union of a two-government system to make it better (as they want to make us believe) by taking into account all existing challenges facing the current Union structure to strengthen the Union between Tanganyika and Zanzibar. Generally speaking, CCM’s document displays its unfair stand in the process of constitution making which has many stakeholders at play. We will look into this question: will the adjustments of the current structure of Union make it even better? But first let’s look into the legitimacy and supremacy of the Draft Constitution.
The legitimacy of Draft Constitution
If one reads CCM’s document, one will realise that CCM does not purposively recognise or respect the legitimacy of the Draft Constitution and the legal role played by the CRC in collecting, researching, analysing, and finally preparing the final Draft Constitution, which is now before the Constituent Assembly (CA) for improvement. CCM does consider itself as a creature which has the sole mandate to make a new Constitution by dictating its own terms according to its own political and historical based interests. CCM forgets that the contents and context of Draft Constitution are superior above CCM’s interests because its availability was through a legal process that involved many Tanzanians from all walks of life.
CCM does not know, or rather craftily pretends so, that has no legal ground, simply by using their majority in the CA to both overstep and override people’s views which were legally obtained through the CRC. This is the kind of perversity that CCM as a political party with every kind of intellectual it has. CCM was not supposed to behave and act in the way it does in this crucial time of constitution making. Had CCM and all its intellectuals realised and respected the legal process which made the CRC to fulfil its obligation for Tanzanians to have a new Constitution, it would not have behaved as it was doing in the CA.
What surprises me most and I hope all who have read CCM’s document is its persistent insistence on its interests to be included in the Draft Constitution while knowing clearly that it has no legal justification to do that against the interests of other stakeholders who are in need of a new Constitution. The Draft Constitution that CCM had themselves sworn to oppose to the last ‘drop of blood’ is a result of the hard work of the CRC that was given the legal mandate not only to coordinate and collect people’s opinions, but also to examine and analyse the consistency and compatibility of constitutional provisions in relation to the sovereignty of the people, political systems, democracy, the rule of law, and good governance. This is part of the scope of the terms of reference given to the CRC in section 9 of the Constitutional Review Act [Cap 83 RE 2012].
The law gave the CRC a wide scope of the terms of reference as stipulated in section 9 and 17.
These sections respectively provided the CRC with functions and a mode of operation during its period of work. No doubt, therefore, the CRC in executing its noble task for all Tanzanians irrespective of their political affiliations adhered to the legally given wide scope of the terms of reference as stipulated in the law.
For example, the CRC was mandated to come out with a document – that’s the Draft Constitution, which will meet the needs of time for both Tanganyika and Zanzibar for it is these countries, which formed the Union in 1964.