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Constitution building in Tanzania: Separation of powers key in new statutes

The Tanzanian constitution is not based on the will of the people. The document, first drafted in 1977 and amended more recently in 2005, is built on partisan politics.
What it lacks is an explicit acknowledgement of the universal principle of democracy.  It hasn’t taken into consideration global issues around human rights and good governance.
What Tanzania needs is a constitution based on the will of its people. Its law of all laws needs to be grounded in free debate; it needs to be a product of true, free speech.
True democracy is necessary if the people are to produce an enduring constitution. Citizens need to be allowed to write a document that inscribes a system of rights, justice and freedom.

Vibrant debate
They have to be allowed to govern themselves by working with elected officials through a self-correcting system that encourages vibrant debate. The people ought to make their own constitution; they do not need any political group to make and sell them one.
Tanzanians are subject to a regime that has written into its constitution the Universal Declaration of Human Rights, whilst it routinely violates those very same rights. Every time citizens attempt to exercise their rights, the regime quashes their efforts.
The people try to exercise their freedom of assembly and association; the regime charges them with sedition and inciting social unrest. Why have these rights in the first place, only to ignore them when citizens decide to very publicly express their dissatisfaction?
You cannot say you acknowledge people’s right to demonstrate, and still put them down when they are compelled to protest at the many injustices they see around them.
One can only surmise that these rights are not there to protect the people; they exist only to make the rulers appear magnanimous.
These rulers are actually playing games with human rights and democracy. So we might end up with a constitution which is conceptually and practically defective; one that perpetrates authoritarian ideals rather than democratic reforms.
The constitutional review process, however, had come at precisely the right time.
Wananchi need to be encouraged to take part; to tell the rulers what they want the mother of all laws to be. The current constitution accords them freedom of expression; they ought to exercise this right.
This can only succeed if all stakeholders are involved; it’s not a job for the Warioba Commission alone. For instance, one would expect civil society to be at the fore of on-going public discourse on the new constitution.
So it comes as a bit of a shock that these organizations are prohibited from officiating any public forums on all things constitutional without prior authorization.
The constitutional review Act Cap 83 R.E 2012 section 21 (2)(a) and c prevents them from holding their own public debates; they’d need prior consent of the Constitution Review commission for that.
Such barriers are unreasonable. If one’s looking to engage the entire population in the review debate, why are civil organization excluded? Are their “interests” being protected? What do constitutional and parliamentary processes produce if they are not democratic?
In my view the nation should first work towards democracy. Tanzania needs to set up its legislature, its judiciary and executive in such a way that there is true and clear separation of power.
The constitution needs to establish clear boundaries between these branches of government, and it has to empower the people.

French philosopher Baron De Montesquieu argues that in a true democracy these branches provide checks and balances on each other.
That way, a single branch won’t have absolute power and is unlikely to abuse the authority it’s given.
Are these democratic principles adhered to? Do we have such separation in Tanzania? Is the Tanzanian judiciary a true defender of justice; a safe haven for those seeking recourse, or has it been compromised by politicians?
Is it truly independent? I would argue that it’s not. Judges are appointed by the president in consultation with the judicial service commission.
The problem is, the president heads the executive, yet here he is dictating judicial service. To carry favour, judges often neglect justice, because they know the executive gives judicial appointments to candidates it can control.
Consequently, we’re seeing a lowering of standards and poor performance by the Judiciary. This need by judicial appointees to please the executive is not at all acceptable.
Worse still, the judicial service commission has become a puppet of the executive to the extent that in practice, it is the executive that really vets and appoints judges.
Under these circumstances, it is very difficult for people to have confidence in the system.

Mob justice
Let me cite a few examples that reflect this. Instant mob justice is common in Tanzania. Almost every day you hear media reports about mobs lynching yet another person.
I grew up in a society where the police were highly respected, and that made their job a lot easier.
These days though, even police stations are fair game. In Itamka, Singida for instance, angry villagers stormed the local police post, overpowered the officers and murdered a man who had been arrested earlier for defiling a 7-year old boy and his 13-year old sister.
Why did they do this? It’s because they felt cheated by the system.
Failures by police authorities to promptly act on citizen information had bred contempt and disillusionment with the service, culminating in locals taking the law into their hands.
Culpability for such complacency goes back all the way to the office of the Inspector General of Police (IGP). In this scenario, the entire chain of command has failed.
Moreover, citizens have very little trust in the judiciary. They don’t feel it’s truly free to dispense justice without fear or favour. When the judiciary succumbs to political will, unprotected citizens lose confidence in the entire legal system.
The new constitution needs to rectify such glaring omissions, if we are to have a truly independent judiciary. It’s the only way the courts can win back the confidence of Tanzanians.
Judges need to be able to discharge the duties of their office free from any intimidation. They shouldn’t have to worry that if the executive doesn’t like what they do, they’ll be replaced by someone the president likes.
It is worth reflecting on something Martin Luther King once said. ‘’He who breaks an unjust law that his conscience tells him is unjust, and who willingly accepts the penalty of imprisonment in order to arouse the conscience of the community over its injustice, is in reality expressing the highest respect for law.’’
We need to remember that while it might be difficult to make our material conditions better by the best law, it is easy enough to ruin it by bad laws.
Source: The Citizen on Sunday (12/08/2012): http://www.thecitizen.co.tz/magazines/61-uhuru50/24834-separation-of-powers-key-in-new-statutes

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Author: Jaba Shadrack
Jaba is a Law Lecturer at the University of Dar es Salaam, School of Law and a blogger based in Dar es Salaam, Tanzania. Read More →

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