Tanzania: Samia And Opposition At Odds Over Constitutional Review

By Adonis Byemelwa

Since the third move of democratization in the early 1990s, more than 25 countries in Sub-Saharan Africa, Tanzania inclusive, have radically amended their constitution or adopted a new one.

These new constitutions represent a symbolic turn towards democracy and initiate formal measures to break with authoritarian pasts.

But Tanzania President Samia Suluhu Hassan has gestured, once again, her reluctance to give a green light for changes to the mother law, until, at most, after the next elections.

When the Head of State assumed office in March 2021 after the death of President John Magufuli, she made it clear that a new constitution was not her priority.

However, she has since introduced reformist policies leading both to an opening of the country and a reversal of her earlier stance on the constitution.

“It will take time to write and endorse the new constitution. We are going to start with awareness and education campaigns to the people of Tanzania to make them know what the constitution is before we sit down to write a new constitution,” she said in Dar es Salaam recently, speaking to a gathering of political parties.

The head of State’s remarks came a week after the former Minister of Constitutions and Legal Affairs Damas Ndumbaro was quoted as saying that, educating the masses about the constitution should take at least three years.

The opposition and members of the public have not been happy with the minister’s statement, citing the cost incurred to review the same document under the retired Judge Joseph Warioba, which cost multibillion shillings, all to end up in vain.

Speaking vehemently at a gathering of opposition leaders, the United Democratic Party (UDP) national chairman, John Cheyo expressed misgivings on the stalled constitutional change before the 2024 civic elections.

“I am not happy with a three-year period of educating the citizens about the new constitution. Tanzanians had provided their views and opinions during the Judge Joseph Warioba Constitutional Review Commission. Frankly, the ruling party Chama Cha Mapinduzi (CCM) is playing dirty cards to remain at the helm. We should not accept this to happen,” said Mr. Cheyo amid applause.

Tanzania is headed for civic elections in 2024, alongside later Parliamentary and Presidential elections in 2025. But President Samia Suluhu Hassan has faced increasing demands to change the constitution passed in 1997, with the opposition and a sizeable number of critics arguing the law is too archaic for today’s use.

Tanzanians want the new constitutions mainly to at least reduce the powers of the President, who had since been accused of increasing the size of her government in total disregard of the biting high cost of living caused by dollar shortage and fuel prices.

The head of state’s decision to break up the Ministry of Works and Transport and create two different ministries has displeased others, who interpreted the change as unnecessary, eventually affecting Tanzania’s taxpayers.

This is the second ministry for President Samia to break up, the first being the Ministry of Finance and Planning, whose dissolving led to the formation of two different ministries, the Ministry of Finance and the Ministry of Planning and Investment.

Stedius Kazinduki, a tutor-cum-activist, at Katoke Teacher’s College, told the author of this think piece that such decisions reflect the extent to which the government ignores people’s hardships as they succumb to the skyrocketing cost of living.

“We nonchalantly enlarge the size of our government. The one who will bear the brunt here is the common citizen, who continues to struggle single-handedly with a biting cost of living conundrum. What is needed is an accountable government, not a bigger one,” he said.

President Samia had also revived an old contradictory title, which was also seen during the second phase of government, the Deputy Prime Minister. Debates have been swirling around the constitutionality of the title, with some arguing there was a breach of the constitution.

However legal experts from both sides have had a consensus that, as per Article 36(1) of the Tanzania Constitution, the President has the power to change the establishment, not just to fill in roles. With some highlighting that this is one of the examples of the excessive power that the President has, explaining that this needs to be addressed with the new constitution. The persistent questions remain about the role of the Prime Minister going forward, the new position is noted as a clear reduction of his mandate.

Nevertheless, former Ambassador Dr. Wilbroad Slaa was against the stance of his colleagues saying that Article 36 (1) of the Tanzania Constitution gives powers to the President to make changes but to establish a new title, in what he says that Article 46 (1) and 52 (1) of the same Mother Law states categorically the duties of the Prime Minister and powers of the President without allowing the head of state to bring in the outdated and uncalled for deputy prime minister title.

The Tanzania’s President had in the recent past lifted a five-year ban on political rallies imposed illegally by her predecessor. But last month, she lashed out at politicians who, she considered were abusing the very freedom she had given by insulting her, instead of propelling their political grassroots support.

On a lighter note, Article 20 (1) of the constitution of Tanzania allows for public assembly. Other laws, such as the Political Parties Act, and the Parliamentary Immunities, Powers and Privilege Act, give political parties and politicians the right to conduct rallies.

Despite these laws, it took another Presidential statement in January 2023 to unban rallies. This illustrates the powers of the president over the Constitution.

In their letter dated July 18, 2023, which has been circulating online, police told Mr Lissu it wants him to finalize the investigation into the remarks it described as “indecent.”

Police did not specify what exactly these remarks were. However, in a separate discussion the Minister of Information, Communication, and Information Technology, Nape Nnauye quoted Tundu Lissu's remarks, “In one of the discussions the opposition leaders said that the President's proposal of recruiting critics in the new Ministry of Planning is presidential rubbish,” dismayed by Lissu’s statement Mr Nnauye cautioned that this is not a way for building a society.

In Dar es Salaam the President underscored the need to apply her 4R’s Philosophy that would guide her to embrace political reconciliation.

The 4Rs stand for Reconciliation, Resilience, Reforms, and Rebuilding in addressing the contemporary issues affecting Tanzania’s social, political, and economic systems.

In 2021 President Samia revived the push for constitutional reforms and set up a 23-member task force that would advise her government on new constitutional requirements. The task force returned a recommendation for awareness first, and amendments later.

The former constitution review proposal included the formation of three governments made up of two semi-autonomous governments of Tanganyika and Zanzibar under the federal government of the United Republic of Tanzania. The proposal was opposed in the Tanzania Parliament, however.

The genuine steps to amend the constitution were actually begun by former President Jakaya Kikwete in 2012. His review commission was, at the time, chaired by former Attorney General and Prime Minister (former), Retired Judge Joseph Warioba but it ended up in vain.

In Tanzania, unfree and fair elections began after the constitution was amended in 1992 to allow for multi-party elections. Since then, there have been six general elections. Each has been marred by accusations of an unlevel playing field, rigging, and violence.

The 2020 general election was especially violent, with many opposition contestants for civic elections crying foul after being found ineligible to vie for posts in what returning officers said they failed to spell their names properly while filing registration forms.

“During the 2020 Civic polls I was dumbfounded to learn that at one of the polling centers in Mbagala Ward, the number of votes announced to have been cast was more than the people we were told to have registered to vote. It was such unfair that even the wife of the contestant did not vote for her husband. The CCM councilor garnered 100 percent of the total votes,” said Prof Ibrahim Lipumba, the Civic United Front Chairman.

The opposition and members of the public say constitutional reform is particularly important before the 2024 civic elections because the composition of the electoral commission as provided for by the constitution is bound to be biased.

The President who is often the incumbent candidate and the chairperson of the ruling party is responsible for appointing the executive director and commissioner of the electoral commission. All election returning officers at the constituency level are also presidential appointees.

The consequence is that electoral officials are likely to be loyal to their appointing authority rather than to the ideals of free and fair elections.

Additionally, once the presidential vote has been announced, the Constitution does not allow for it to be challenged in court. Therefore, waiting for three years to educate the masses before writing the new Mother Law, as President Samia Suluhu Hasan and her cohorts want, is akin to endorsing the illegal. This should not be allowed to happen in a democratic country like Tanzania.