How calls for a new constitution began in Tanzania

While the clamour for a new constitution in Tanzania kicked off immediately after independence, it is the presidency of the late John Pombe Magufuli that triggered the current fierce debate for a new supreme law.

During his six-year tenure (2015-2021), President Magufuli utilised the organs of the state to brutalise the opposition, civil society or any individual or organisation that did not toe the Chama Cha Mapinduzi (CCM) line.

Yet he did not have to change the constitution to do so, as those powers and authorities exist in the document that the founding father Julius Nyerere left intact.

This has ignited debate in Tanzania, the second most populous nation in the East African Community after the recent entrant, the Democratic Republic of Congo.

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President Samia Suluhu Hassan, who is also the CCM party chairperson, was previously vice-chairperson of a Constitutional Assembly that was set up by former President Jakaya Kikwete to draft a new constitution.

The draft document was supposed to be subjected to a national referendum, but both Kikwete and the late Magufuli declined to pursue the debate further.

President Hassan described the current debate on a new constitution as healthy but felt like she was being rushed into the matter.

“Please give us time to improve the economy. That is the most important agenda bigger than the others,” she said when she marked her one year in office.

“But that is not to say that the constitution is not important, but I am asking that please allow me to concentrate on our economy. They say ‘economic power by political power’, is that not so?”

Tanzanians inherited the Lancaster Conference constitution of 1962 that did not include the Bill of Rights, an important component in good governance and respect to human rights.

Reacting to recent reforms in President Hassan’s government, including her approach to Covid-19 and reining in corruption, Chadema party vice-chairman and opposition leader Tundu Lissu, now in exile in Belgium, said it was time the constitution was changed to consolidate legal reforms in various sectors of Tanzania’s political and economic sectors.

“I think President [Hassan] can deliver on a promise to Tanzania that we get a new constitution,” said Lissu, vice-chairman of the Chadema.

“After five brutal years under Magufuli both inside CCM, within the state and outside in the opposition and within civil society, the nation is ripe for a new constitution.”

Lissu, who was the Tanzanian opposition presidential candidate in the October 2020 elections, lamented that the current constitution invests too much power in the presidency at the expense of other institutions.

“There is a need for Tanzania to have a new constitution because the current constitution is authoritarian and out of touch with the current democratic principles and ideals for a new Tanzania,” he said in an interview.

“There is continuity from the colonial to the post-colonial government. Both have lacked accountability and did not care about rights.”

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He identifies Magufuli’s presidency as one of the key defining moments that exposed how totalitarian the current constitution is.

“But what Magufuli did is he removed the velvet glove from the iron fist that has always been the Tanzanian state. He turned the security services above and beyond just the opposition,” Lissu said.

In 1977, Nyerere convened a Constituent Assembly to discuss and enact a new constitution.

The 1977 constitution essentially confirmed the provisions of the interim constitution: a strong presidency, single-party rule, and retention of the two-tier structure of government.

Under this constitution, a candidate for the Zanzibar president would be selected by a special committee of the Central Committee of CCM.

But the calls for a new constitution continued under the second president, Hassan Mwinyi, and the third, Benjamin Mkapa. They too formed commissions whose recommendations were never implemented.

But it was Kikwete’s committee, of which President Hassan was co-vice chair, that came close to delivering a new constitution, until the Ukawa party pulled out at the last minute with claims that the proposed constitution would introduce segregation.

The constitution-making journey in Tanzania since independence

• § Great Britain and Tanganyika nationalists negotiated a constitution for an independent country in 1961. The constitution, based on the Westminster system, established a constitutional monarchy with Queen Elizabeth II as the formal head of state, represented by a governor-general. Executive authority was vested in a Prime Minister.
• § The constitution did not have a Bill of Rights, which was a concession the British made to the Tanganyika nationalists.
• § In 1962, the document was drastically revised by the Tanganyika African National Union (Tanu), the dominant party in Tanganyika.
• § The revision replaced the multiparty parliamentary system with a one-party presidential system with the governor-general as president, first minister, the head of state, and commander-in-chief of the armed forces.
• § He was granted powers to appoint the vice-president and ministers and to dismiss parliament under certain circumstances. The Preventive Detention Act also gave the president unilateral powers to authorise detentions without trial.
• § This revised constitution lasted until 1964, when Tanganyika and Zanzibar merged to become the United Republic of Tanzania.
• § In 1965, the constitution was amended to introduce single-party rule led by Tanu on the national level, but allowed the Afro-Shirazi Party to continue in Zanzibar.
• § Although initially intended to last a year, the interim constitution was in place until 1977, with the addition of several amendments to strengthen Tanu’s rule and weaken Zanzibar’s autonomy.
• § On February 5, 1977, Tanu and ASP merged to become Chama Cha Mapinduzi (CCM, Party of the Revolution).
• § On March 16, 1977, President Nyerere appointed a 20-person committee, led by Thabit Kombo (a former secretary-general of the ASP) to make proposals for a constitution for the United Republic.
• § On March 16, 1977, President Nyerere also convened a Constituent Assembly to discuss and enact the new constitution.
• § The constitution essentially confirmed the provisions of the interim constitution: a strong presidency, single-party rule, and retention of the two-tier structure of government.
• § Under this constitution, a candidate for the Zanzibar president would be selected by a special committee of the Central Committee of CCM. That name would be confirmed by the National Executive Committee of CCM and forwarded to the Revolutionary Council of Zanzibar for approval or rejection.
• § In 1979, Zanzibar adopted a new constitution, almost identical to the national Tanzania constitution but it did not include the Bill of Rights.
• § In1983, new constitutional debates started in Tanzania with the ruling CCM setting the agenda for change.
• § The three main areas for analysis and possible reform were: executive powers, supremacy of parliament, and participatory democracy.
• § In 1984, the constitution was amended to include a bill of rights.
• § The 1984 amendments also limited the presidential mandate to two terms and introduced a system of two vice-presidents, whereby at any time, one shall be the president of Zanzibar and the other the prime minister of Tanzania.
• § The collapse of the Soviet Union highlighted the need for more constitutional reforms in Tanzania.
• § On March 26, 1991, President Mwinyi appointed a commission under the chairmanship of Chief Justice Francis Nyalali to collect views on what type of political system Tanzanians would like. The Nyalali Commission had one year to complete its work. The commission’s report called for a repeal of the 1977 constitution as well as 40 additional laws that the commission felt were undemocratic and contrary to established human rights.
• § The commission found that although 77.2 percent of those interviewed preferred Tanzania to continue with its current system, the changes requested could only be accommodated under a multiparty system.
• § Consequently, on May 29, 1992, Tanzania passed the Political Parties Act, allowing a multiparty system.
• § This change, however, did not eliminate the calls for a new constitution, which the Nyalali Commission had recommended.
• § In 1998, to calm mounting pressure, President Mkapa appointed a 16-member committee led by Justice Robert Kisanga of the Court of Appeal of Tanzania.
• § The committee visited and collected views from all districts and presented an over 800-page report to President Mkapa in 1999.
• § However, the government ignored many of the committee’s recommendations, arguing that they were not in line with the views of the people.
• § As a result, the 1977 constitution has remained in place to date.
• § Under the 1977 constitution, the president of the United Republic is head of state, of government, and commander-in-chief of the armed forces.
• § The prime minister and the cabinet form the government, are appointed by the president and are responsible to him.
• § The president of Zanzibar is the head of the Revolutionary Government of Zanzibar, which has authority in Zanzibar over all non-Union matters.
• § In 2011, the government launched a process to draft a new constitution for the country.
• § On November 30, 2011, parliament enacted the Constitutional Review Act (CRA), establishing the Tanzanian Constitutional Review Commission to collect public opinions on reviewing the constitution and validation via a referendum.
• § On April 6, 2012 President Kikwete appointed a 30-member commission with former attorney-general and prime minister Joseph Warioba as chairman and former chief justice Augustino Ramadhani as vice -chairman.
• § By October 10, 2012, more than 500,000 Tanzanians had expressed their views on a new constitution, and the commission released its draft constitution on June 3, 2013.
• § In mid-April 2015, the Ukawa party, which forms more than one third of the CA, walked out, claiming that the draft was promoting segregation. A two-thirds vote is necessary for the constitution to pass.