Dar es Salaam: Forum speakers want revision of Katiba review Act

By Elisha Magolanga and Louis Kolumbia.

The Constitutional Review Act that guides the making of the new constitution must be comprehensively overhauled because it contains numerous flaws that will result in a deficient supreme law, participants of a public debate said in the city yesterday.

One of the main weaknesses concerns the formation of the Constituent Assembly and the holding of the referendum, Dr Tulia Ackson, a law professor from the University of Dar es Salaam, who chaired the debate, noted.

Participants also took issue with the clause that says that in case the draft new constitution is rejected during the referendum then the current constitution will continue being used.

Forcing the continuation of the use of the old constitution when and if people reject the draft new constitution is akin to dictatorship, they said. It is also an indication that the constitutional review process was initiated through pressure, which explains why a deadline of 2014 has been set for Tanzania to get a new constitution.

Participants also said both the National Electoral Commission (NEC) and the Zanzibar Electoral Commission (ZEC) were not capable and credible enough to supervise the constitutional referendum due to significant flaws in past elections.

Yesterday’s debate was coordinated by the Legal and Human Rights Centre (LHRC) and was aimed at increasing people’s awareness on the Constitutional Review Act, specifically on how it guides the making of the Constituent Assembly and the referendum.

Panelists were mainly legal experts from universities and private practice. They included Dr Koti Kamanga and Jesse James from the Law School of the University of Dar es Salaam, Zanzibar-based law professor Ali Uki, lawyers Zephrine Galeba and Magdalena Rwebangira and Jane Magigita from the Equality for Growth organization.

Composition of Constituent Assembly

Mr Galeba said the number of politicians to be included in the constituent assembly was too many and would result into a constitution that heavily protects their interests. According to the law politicians drawn from the National Assembly and the House of Representatives will constitute more than 70 per cent of all members of the constituent assembly or 432 members out of the total 598 members. Politicians from registered political parties, but who are not in the two legislative houses, will also be included in the other group of 166 members of the constituent assembly to be appointed by the President.

“The people must think about this and say whether they want a constituent assembly dominated by politicians,” Mr Galeba noted. Ms Rwebangira proposed that the revised law should clearly say that MPs will only constitute one third of members of the constituent assembly members.

The planned referendum ‘a sham’

Mr Uki said the planned constitutional referendum risks being a sham, if the constitutional review act will not be overhauled. Firstly the law’s definition of the referendum is flawed. “It says the referendum will only give people the opportunity to ‘ratify’ the draft constitution.

This definition is wrong because basically the referendum should give people the chance to vote for or against the draft constitution,” Mr Uki noted calling for an amendment of the definition to state that the referendum should give people an opportunity to either reject or accept the constitution.

The time of 30 days allocated for “campaigning”, which will be between the publishing of the final draft in the government gazette and voting in the referendum was not enough, Mr Jesse argued.

“But the law also does not say who will be responsible for publishing the final draft and when. Its is important that these issues are clarified in the law,” Mr Jesse noted.

There is also confusion in the law. The English version says it is the majority of the vote that will count, but the Swahili version says it is the majority of the valid votes that will count in the results of the referendum. “We must remember that this kind of confusion was the subject of a court case in Kenya in their constitution review process. Why do we wish to make the same mistake?” Mr Jesse queried.

One of the fundamental flaws of the law, Mr Jesse noted, is that it provides for reverting to the current constitution in case the final draft of the new constitution is rejected in the referendum.

“This is wrong the law should clearly say that the review process will continue till we get the new constitution. We should not be subject to the mercy of the President,” Mr Jesse advised.

The organizers of the debate, however, refused calls from some of the participants of the debate, for coordination of mass action or going to court to pressure the government to review the law saying those were not credible options.

The call to review the constitutional review act is not new as opposition politicians and civil societies have but organizers of yesterday’s debate said they wanted to give ordinary people an opportunity to understand the contents of the law and determine if it must be reviewed to pave way for a better constitution.

In order to further engage Tanzanians a 19 member independent committee has been formed to oversee the constitutional review process, Mr Harold Sungusia, Director of Advocacy and Reforms of LHRC said at the beginning of the debate yesterday.

Mr Sungusia noted that the committee that will include members from outside the country like Kenya will research key issues on the review process, make recommendations as well as engage the public in debates so as to ensure the constitutional review process produces the good constitution. Dr Kamanga will be the chair of the committee.     

Source: http://www.thecitizen.co.tz/News/Revise-Katiba-review-Act--call/-/1840392/1863744/-/bmwyuuz/-/index.html