‘CA has powers to change Katiba’

Dodoma.

The Constituent Assembly (CA) will have Standing Orders empowering it to reject provisions in the Draft Constitution and draw up alternatives.

This was known when the Draft Standing Orders Committee was responding to queries from CA members, who wanted to know what would happen if an article or part of it failed to get a two thirds majority during voting by delegates. A member of the committee, Dr Akson Tulia, said the law empowered members to reject some parts of the draft and replace them with new provisions.

“As we have seen in the Constitutional Review Act, this assembly has powers to amend, change and improve the Draft Constitution. Because this assembly has such powers, the final proposed constitution is the one which will be sent to the people in a referendum. It is only provisions which this assembly will accent to which will be sent to the people,” she said when responding to questions by Ms Pauline Gekul.

Ms Gekul had proposed that provisions of the draft that would be rejected by the CA be sent to the people for a decision, which should be adopted by the assembly.

But Dr Ackson said the assembly was empowered to review the Draft Constitution expected to be tabled this week by Constitution Review Commissioner (CRC) chairman Joseph Warioba.

Elaborating, she said the law empowered the CA to discuss and change the draft without involving another institution or the people.

Dr Ackson said Section 25 of the Constitution Review Act gave the assembly powers to draw up provisions for the proposed constitution as may be deemed necessary.

Interpretation of the section has been a source of controversy in recent weeks, with Attorney General Frederick Werema stating that the law gave the assembly powers to reject provisions proposed in the second draft constitution.  He said there was no need to have an assembly if it did not have such powers.

But Mr Warioba warned earlier that the process Tanzania had adopted in writing the new constitution limited the Constituent Assembly’s powers in handling the second draft. He said the draft contained the views of the people, which the CA had no powers to discard.

According to Mr Warioba, the assembly would have had the authority to change anything had it been in charge of the process right from the beginning.

But Dr Ackson said on Saturday that the law empowered the assembly to change the draft as long as the changes had the support of at least two thirds of members from Zanzibar and as many from Tanzania mainland, adding that the resultant proposed constitution would be subjected to a referendum.

She said there was no need to fear that the rejected provisions would make the Draft Constitution incomplete because the assembly would draw up alternatives.

“The proposed constitution will be complete. The provisions that will be removed will be replaced because we are empowered to make such changes…we cannot remove a provision and leave the space blank.  We’ll have to come up with a replacement to ensure that we have a complete proposed constitution at the end of the day.”

Dr Ackson’s response followed the concern voiced by Mr Hamza Hassan, who said if a section of the proposed constitution failed to get a two thirds majority during voting, it would have to be suspended, adding that this would make it impossible to have a complete proposed constitution within the specified time. “We need clarification from the beginning on how we are going to debate the Draft Constitution. If one section is rejected, how are we going to proceed? This should be answered because for a constitution to be complete it has to have all the provisions,” he said.

Mr Christopher ole Sendeka also expressed similar worries, saying: “According to the law, if a section does not get the two thirds majority vote at the committee level, it will be sent to the Reconciliation Committee and upon consultations, it will be returned for a second vote. But there is a danger that it might be rejected in the second vote, and this is where the law is defective because it does not offer guidance on what needs to be done in such cases.”

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