By Mwassa Jingi
Posted Sunday, April 12 2015 at 11:00
Posted Sunday, April 12 2015 at 11:00
IN SUMMARY
· The
constitution-writing process in Tanzania has encountered some challenges that needs
time to study and work on so that we may get a Constitution that
commands both legal and political legitimacy
Dar es Salaam.
What
has been in controversy for several months about the referendum date
now is clear. At last, what has been anticipated by the majority
citizenry has been fulfilled – the referendum has indefinitely been put
on hold. Last year, President Jakaya Mrisho Kikwete, while on a state visit to
China, announced that the referendum day would be on April 30, 2015. It was
argued that the President’s mandate in setting a date for the referendum
is given vide section 4 of the Referendum Act, 2013, which empowers the
President to initiate a referendum.
Specifically,
it was claimed that the announcement of the referendum by the President
was mandated by section 4(2). This section stipulates that: “An order
for a referendum shall be in the form set out in the schedule to this
Act, and shall (c) specify the period within which a referendum shall be
held”.
Legal
interpreters of the above section do argue that the President had no
mandate to specify the day on which the referendum was to be held, but
was only authorised by the law to specify a period (duration within
which the referendum was to be held).
Thus,
the whole section 4 of the law in question was mandating the President
to initiate the process for the referendum, including specifying the
period, which the National Electoral Commission (NEC) would frame their
working calendar in making practical arrangements, including setting a
date for the referendum.
However,
it is likely that the President could have been misled by his advisors
particularly Prime Minister Mizengo Kayanza Peter Pinda and former Attorney General
Frederick Werema, who seemed to be in favour of having the new
Constitution completed by President Kikwete before finishing his tenure
of office in October, 2015. The President, in specifying the day
for the referendum, was complying with the legal requirement, which
wanted him within 14 days after receiving the proposed Constitution on
October 8, 2014 in Dodoma, to initiate a referendum motion. NEC then
was to take over after President’s initiation of the referendum time.
Had
the President not wrongly announced the referendum date, NEC would have
comfortably set it out after taking into account all logistics
pertaining to the referendum for the proposed Constitution.
Nevertheless, NEC would not in any degree challenge a mistake made by
the President by specifying the referendum date. NEC’s priority was to
update the voters’ register, which was already ordered by the government
to use a biometric system. The instruments that would facilitate
updating the Biometric Voters’ Register (BVR) was to cost the country dearly,
that’s not less than $100 million (Sh1.8 trillion). This money and the
whole process of procuring the devices were wholly on government
shoulders. NEC itself had no power to get the money at a time it needed
even if it could be 100 per cent independent. The independence of NEC
if any is to conduct its affairs according to Article 74(7) of the
Constitution of the United Republic of Tanzania, 1977 and the National Elections Act.
Despite the obvious facts explained above, one day after NEC announced
indefinite postponement of the referendum day, Mr Nape Nnauye, secretary
of ideology and mass mobilisation, who also doubles as Chama Cha
Mapinduzi (CCM) spokesman went public and blasted NEC members, claiming
they should be responsible for the confusion they caused among
Tanzanians for sticking to the referendum date knowingly that it was
impossible and impracticable. Nape dashed out his words to NEC members
as a way of defending his party and government in power for the blunder
and confusion it has caused to Tanzanians on the entire process of
constitution making, leave alone the referendum date.
Apart
from the referendum date being announced by the President, some senior
ministers also insisted referendum date won’t be changed even when it
was obvious that it could not be possible unless through God’s
intervention. Now the anticipated miracle has failed. Thus, this
controversy was not caused by NEC, but the government itself, which Nape
tried to defend on the expense of NEC. That is not right.
The
government and CCM leaders cannot run away from condemnation resulting
from the referendum date because they were the ones, who for their own
interests wanted the process of writing the new Constitution to be
hurried and completed before President Kikwete finishes his
presidential term. I think now all comrades of CCM can learn that hurry
has no blessing at all, especially for a big project like writing a new
Constitution. This is also a repercussion of President Kikwete’s
disregard for the agreement he reached with political parties through
Tanzania Centre for Democracy (TCD) in August, 2014 in Dodoma. As
things go now, no doubt what was agreed between President Kikwete and
TCD may be revived and relieved NEC from pressure and fever of rushing
to the referendum.
It
is high time for both President and his Cabinet listened to what has
been suggested by various stakeholders concerning the referendum and
possibly set it aside and leave NEC to do things pertaining to the
general election only. Stubbornness does not pay off, it only has
negative effects.
The author is a lawyer/journalist. He can be reached at
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