Tanzanian Affairs Issued by the Britain-Tanzania Society No 111 May - Aug 2015 Analysis of the Proposed Constitution Swahili as the Medium of Instruction in Schools Abdul Paliwala : ANALYSIS OF PROPOSED CONSTITUTION The recent seminar arranged by BTS and the School of Oriental and African Studies (SOAS) on the proposed constitution for Tanzania included four very enlightening presentations. Unfortunately, we do not have space here for all four, but we are delighted to be able to include this one. Abdul Paliwala is Emeritus Professor of Law at the University of Warwick; He is also currently Visiting Professor of Law at Birkbeck (University of London). The purpose of a Constitution is to serve and to promote the well- being of the people of a nation. In particular, it is intended to provide an element of peace and personal security for law-abiding citizens. It is intended to provide for citizens a solid foundation on the basis of which they can organise their lives knowing (or believing) that the things they most value will be safeguarded, and the things they most fear will not take place. In order to fulfil that function however, the constitution has to uphold, to strengthen and support the unity of the nation regardless of any internal distribution of power between groups or regions. It should be their conscious declaration of them- selves as a unity. It should be their collective, “I am”, a deliberate assertion by the group that is united in a common citizenship and with duties and rights to and from each other in that capacity. Julius Nyerere Mwalimu Nyerere was here emphasising the idea of universal accept- ance and legitimacy, which is the hallmark of the most enduring con- stitutions. Constitutional lawyers increasingly suggest that the Constitution is not a document but a process, and that constitutions have to be ‘built’ to last. This building involves the process of making a new constitution, the process of its enactment and the continual process of ensuring that the entire nation now and in the future continues to accept it as a collec- tive ‘I am’. This paper therefore deals briefly with these three aspects of Constitutional Building. It is not my intention to lay any blame on any side, but it is sad that the Tanzanian constitutional review process, which started so well, faces cover photo: MP for Ludewa, Deo Filikunnjombe, testing a biometric voting registration machine, with Prof. Amone Chaligha watching. (www.wavuti.com) Analysis of Proposed Constitution 3 severe challenges today. The very nature of those challenges, with par- ties walking out, puts in jeopardy the notion of a ‘conscious declaration of unity, the collective I am’ that Mwalimu talked about. The Constitutional Process Tanzania established a Constitutional Review Committee composed of equal representation from Tanzania Mainland and Zanzibar and con- taining eminent persons including as chair the former Prime Minister Joseph Warioba. The Committee carried out a wide consultation at the end of which it produced the first draft constitution in June 2013. This was again the basis of further consultation at the end of which was pro- duced the 2nd draft in September. This draft was substantially revised by the Constituent Assembly and approved by 2/3 majority votes of members from each part of the Union. However, this was partly because the opposition walked out! They felt that the Government side was dominating the proceedings. The Constitutional Review Act requires a referendum to approve the Constitution with a simple majority vote in each part of the Union. At one stage it was announced that this would be postponed until after the general election. However in October 2014 the President announced that the referendum will now take place in April 2015. The confusion, opposition walk-out, delays and limited time for proper information and deliberation on the referendum means that the Constitutional Review process has been problematic! The Constitutional Drafts The Second Aspect of Building a Constitution is the Document itself. How robust is it? It is therefore necessary to compare the drafts pre- pared by the Constitutional Review Commission (CRC) and the pro- posal approved by the Constituent Assembly (CA). This section deals with four key aspects of the drafts and proposals. These include the Union, Presidential powers in relation to other insti- tutions of governance, accountability and fundamental objectives and human rights. The Union What is the authority of the Union Government over Zanzibar? The CRC proposed a 3 government structure including a government for 4 Analysis of Proposed Constitution Tanzania mainland, for Zanzibar and the Union Government. Each would have clear competence in relation to its assigned matters, so that Union laws could not override Zanzibar laws in areas of their compe- tence. However, this proposal was rejected by the CA and its proposed constitution provides essentially for the retention of the existing two government structure. Zanzibar is responsible for certain areas and the Union Government responsible for Union and Tanzania mainland affairs. The Union in 1964 was based on the Agreement between the two governments which was incorporated into the Acts of Union. This was essentially preserved in the 1977 Constitution and continues to form the basis of the Union and can be said to be the Fundamental Law of the Union. The CRC preserved this status under Article 1 (3); so does the CA. Yet at various points both drafts seem to refer to matters which under the Constitution come under Zanzibar authority. Does it mean that where there is a conflict the Acts of Union will prevail? What are the areas of competence? The current Constitution provides for 22 matters as Union matters. The CRC reduced this to 7. The National Assembly Proposed Constitution provides for 14. What are the limitations on competence of Zanzibar to decide its own affairs? There has been resentment in Zanzibar about a number of areas- including the budgetary, financial and taxation relationship. Another area has been the ability of Zanzibar to make agreements at interna- tional level, in particular, the controversy over whether Zanzibar could become a member of the Organisation of Islamic Countries. The CRC provided for the establishment of a Commission for Coordination of Relations between the three Governments consisting of five members. This would be chaired by the Vice President and include the Presidents of Zanzibar and the Mainland governments as well as Resident Ministers from Zanzibar and the Mainland and the Union Foreign Minister. It provided that in all matters, the Commission should observe the principle of equality in the provision of services in Zanzibar and the Mainland and the principle of ‘proportionality’ in matters of allocation. The CA also provides for a Coordination Commission with similar membership. In addition, Article 252 of the CA proposal provides for a Analysis of Proposed Constitution 5 Joint Finance Commission of the Union and Zanzibar Governments con- sisting of 4 members from the mainland and 3 from Zanzibar appointed by the President after consultation with the President of Zanzibar. The Finance Commission would work on principles of allocation of finances in the country. However, neither the Coordination Commission nor the Finance Commission are required to observe the principles of propor- tionality indicated in the CRC drafts, with the assumption that these will be worked out on a mutual basis. The CRC was concerned to give stronger powers to the Coordination Commission and used the words ‘special responsibility for ensuring’, whereas the CA Proposal uses less mandatory language ‘a special role to facilitate’. More significantly, the CRC provided for appeal to the Supreme Court in case of conflict in relation to issues. This recourse to the Supreme Court is removed in the CA proposal. Therefore the CA is tending to provide a facilitative rather than decisive role for the co- ordination process. Both the CRC and CA Drafts provide that Zanzibar can borrow inter- nationally with the cooperation of the Union Government. In addition they provide that Zanzibar can enter into agreements with international agencies and organisations, again with the co-operation of the Union government. However the CA proposal provides that the National Assembly may enact legislation to control any such agreements thus potentially limiting the power. In relation to the judiciary, the CRC proposed a hierarchy with the Apex Court being the Supreme Court of the Union, A Union Court of Appeal which could hear appeals from both parts of the Union, and separate High Courts for the Mainland and Zanzibar. In particular, the Zanzibar court would exercise jurisdiction in accordance with the Zanzibar Constitution. The Two Government solution of the CA has meant that while the Supreme Court and the Court of Appeal have been retained, there is a High Court of the United Republic which can deal with all matters including union and Tanzania Mainland matters which are not specifically assigned to another court, for example the High Court of Zanzibar. However, Article 199 (2) provides parallel jurisdiction to the High Court of Zanzibar in relation to any law made by the union Parliament which applies to both Zanzibar and the mainland. In relation to Parliament, the CRC Draft Article 113 proposed a small 6 Analysis of Proposed Constitution union Parliament with a maximum of 75 members. This reflected the limited Union powers under the three government system. More spe- cifically, it divided the numbers for the Union Parliament for Zanzibar and the Mainland with 20 members from Zanzibar and 50 from the Mainland. The CA Proposal has increased to a minimum of 340 and a maximum to 390 members. More specifically in relation to the Union, it does not specify any ratio between Zanzibar and the Mainland, pre- sumably leaving it to the Electoral Commission, with the result that the principles of Zanzibar representation in Parliament are not clear.