MY CONSTITUTIONAL REVIEW COMMENTS TO TANGANYIKA LAW SOCIETY

Posted here on 16/12/2012.

TANGANYIKA  LAW SOCIETY  COMMENTS ON THE COMMISSION FOR CONSTITUTIONAL REVIEW in TANZANIA, EAST AFRICA

Members are advised to send their opinions to TLS Secretariat in the following areas:-

1)    The United Republic and the People;

The United Republic of Tanzania and its people are too far apart in any sense of the concept.  People’s views are not taken into consideration in many aspects of our lives. 

Recommendation:

The People must have the power to remove any public officer who does not comply with the wishes of the majority of the people in any political office; be it appointment or an elective post.  Let this be categorically stated in Chapter Three of the Constitution: The Executive. 

2)    Exercise of State Authority of the United Republic;

1.       The State is too powerful and the people fear its reprisals.  The Coercive powers of the state must be curbed to ensure that people are treated with respect and dignity by the state apparatus.   Articles 12 to 14 of the Constitution; despite their retrenchment are not enforced to ensure this fact. 

2.      People have stopped the exercise of “assisting the police” for fear of themselves being turned into victims by the same police.   Corruption aside, the police have lost their credibility before the public they are supposed to protect. 

3.      The Judiciary has also lost its credibility before the people.  Justice is not being seen to be done.  Magistrates, Judges, Advocates and Court Clerks have joined hands in receiving bribes.  There is a famous name of an official of the High Court in this country who is being bandied by all and sundry that once your case is before him/her, you must prepare to dish out a bribe in order for your judgment to be written and read!   Like the police officers, our professional integrity has fallen into disrepute with the public. 

4.      The Parliamentarians are not spared in this indignity.  They are en masse silenced to air peoples views in the House by dint of their majority in a particular political party.  The institution of the Independent Candidate in the Constitution might alleviate this problem. 

Recommendation:

All the State organs must be made accountable to the people in whatever form available.  The Police for example must be committing an offence if they do not inform the offender of the charges they are being preferred.  Police brutality must STOP FORTHWITH.    Police officers who kill indiscriminately must be charged of murder like everybody else. 

Police must stop branding people “accused persons” by trumped up charges!  They are all out to milk the common man and woman through this notorious system of remanding people in custody without cause whatsoever. 

The Constitution must state  categorically by providing a time limit of bringing cases to their conclusion unless otherwise stated somewhere else due to their difficulties.

3)    Fundamental Objectives and Directive Principles of State Policy;

These should reflect the reality prevailing in our country and not mere rhetoric of Ujamaa na Kujitegemea; which has died a natural death with the Zanzibar Declaration.  

4)    Basic Rights and Duties;

The Bill of  Rights should be precisely written and separately for each right to be easily understood by the people.  They should not be lumped together as they appear now in the Constitution.   

Bill of Rights should be expanded without crossing the line of our African Cultural heritage.  The necessary rights can be borrowed from fellow regional Bill of Rights Instruments without offending the public with gay rights and rights to abortion. 

All claw-back clauses should be removed in  the Bill of Rights in the Constitution. 

Article 11:  The rights to  Social Security and Education to Secondary school level should be provided within justiciable  provision of the rights in the Constitution.

5)    The Executive of the United Republic;

The whole of Chapter Three of the United Republic of Tanzania Constitution, 1977 requires a revamping exercise.   The majority of its articles confer too much power on the Executive.  Articles 33, 34, 35, 36, 37, 38, 39, 41, 45, 46, 55, 59, 61.    All the powers conferred on the executive therein must be removed to other appropriate bodies accordingly.

Recommendations:

Article 33 (2) - should be amended to remove two of the powers conferred on the president.  The president should remain only to be the head of state.

Article 34 (1) – There should also be an addition to show that there is the Government of Tanganyika with its own executive.

There should be added an article proclaiming that the United Republic of Tanzania is a Federation of  State of Zanzibar and the State of Tanganyika. 

Article 37 (1) – confers on the Presidency Absolute Power over the State Organs; power which Corrupts Absolutely.  This power must be curbed by the Constitution providing for only limited space for freedom of choice.  The president must be obliged to take advice from professional quarters dealing with professional issues. 

Article 37 (3) -  In case of the President’s incapacity/unavailability to discharge functions of state, then there should be an added article which would articulate the rotational aspect of taking over his place among the two presidents  within the Federation.

Article 39 (2):  The reasons stipulated under this article should include the provision that during the process of the general elections, the president must step down to allow for a level ground of contesting for the same. 

2.  The same provisions for the President in 39 (2) should also apply mutatis mutandis to the Prime Minister.

Article 41: 

1.       Should include an article which stipulates the stepping aside of the sitting President during the process of elections.  There should be somebody else among the other two state organs to take that place to neutralize the election process ground for all candidates.  

2.      The minimum educational background of the President should be at least a university degree.

Article 45:  The Prerogative of Mercy should be removed from the Executive and placed on the Judiciary itself to remove the Separation of Powers contravention. 

Article 46 (1):  IMMUNITY must be removed  from the incumbent President and allow for institution  of court proceedings in case of his/her breaking the law in any sphere. 

Article 46 A (1) – Impeachment of the President must be REPEALED.  Instead, let us borrow the South African REMOVAL provisions of their Constitution.   While impeachment of the President or any public official may take 15 months ceteris paribus, the South African President can be removed within two weeks according to their Constitution. 

Article 59 (1):  The Attorney General should not be appointed by the President and should never be a member of the Legislature.  The A.G. should be an advertised post for the public to vie for. 

Article 61 (1):  The Regional Commissioners, the District Commissioners must be the elected by the people of the said regions and districts to remove the biasness we experience in the present set up.   The biasness of toeing the line of party politics. 

6)    The Legislature of the United Republic;

The legislature should never contain members who are active participants in other state organs.  Ministers, the Attorney General (Art.  should not be members of parliament.

There must be an educational qualification for Members of the House.  The qualification of knowing how to read and write does not assist Constituencies to be assisted by their Member of Parliament.  The MP must have adequate knowledge to grasp the modern technicalities of issued presented in the House. 

7)    Procedure, powers and privileges of Parliament;

Their enormous financial privileges are costing this country of its professionals.   The financial privileges must be trimmed to conform with other state organ’s privileges.   The fear is of losing the few professionals that the country has to the Parliament while they are sorely needed elsewhere. 

8)    The Revolutionary Government of Zanzibar and the President of Zanzibar;

9)    Dispensation of Justice in the United Republic;

1. The Right to be represented in the courts of law must be stipulated in the Constitution.  Exclusion of the numerous criminal offences from representation is causing Justice not to be done and not to be seen to be done.  The provision must include all criminal matters whose penal sentence exceeds six months. 

2.  Let the country resort to EPISTOLARY JURISDICTION on litigating their rights like they do in India.  It is unfortunate that people’s rights are daily violated without recourse to justice due to people’s ignorance to litigate them. 

3.  The Judiciary must do an Evaluation of Itself to weed out the corrupt elements within it which has eroded the public’s opinion of this august body. 

10)                       Provisions regarding the Finances of the United Republic;

The use of any finances of the United Republic or of any other of the state organs of the Federation must be accounted for; and if not the culprits must be contained rather than transferring public officials to milk the country in another post.  

11)                       Public Authorities;

Must be seen to be transparent and accountable to the people.  The present system of confidentiality in Ministries and almost all public offices is paving the way for corruption and a weapon for laisez faire officials to hide behind their notorious laziness.  

Must be controlled to curb the loss of funds through their functionaries.  Using public funds for personal gain must be stopped at any cost in order to develop the country.   In local government authorities, the rampant problem of revenue collections ending in officer’s pockets should be curbed. 

The requirement of Local Government Private Revenue Collection Contractors should be mandatory for all local government Authorities.  It has shown great merits on the local government authorities which have resorted to it. 

12)                       The Union;

Should be revamped and form a Federation in its place.   The Federation should be between the Revolutionary Government of Zanzibar and Tanganyika to Form Tanzania or the United Republic of Tanzania. 

13)                       The Union and non- Union Matters;

This bone of contention must be removed once and for all.  The Union Matters must be re-written according to the Federation Agreements. 

14)                       Land, Environment and Natural resources;

15)                       National Investment Contracts;

The national cannot afford to let its natural resources go for good.  National Investment Contracts must be transparent and accountable to the country.   People must be in a position to discuss the contents of such contracts before they are agreed.  The fact that the National Assembly is being prohibited from discussing such contracts must stop!  The provisions on this aspect are the once which would safeguard the people’s rights on No. 14 above on Land, Environment and Natural Resources.