Tanzania’s pathway to a new constitution: genuine progress or political rhetoric?

Tanzania's President, Samia Suluhu Hassan, has implemented democratic reforms that demonstrate a willingness to revitalize the stalled constitution-making process. This aligns with the President's reconciliation agenda, aimed at addressing the opposition's grievances from years of oppression under the previous administration. While a roadmap for constitution-making has been outlined by a taskforce, concerns remain regarding the structure of the process and the possibility of its success. However, with General Elections on the horizon and both the government and opposition championing the cause of a new constitution, civil society must advocate for a people-centered approach and demand a clearly defined agenda in the constitution-making process – writes Nicodemus Minde

Introduction

When President Samia Suluhu Hassan assumed office in March 2021 after the death of President John Magufuli, she made it clear that a new constitution was not her priority. However, she has since introduced reformist policies leading both to an opening of the civic and political space of the country and a reversal of her earlier stance on the constitution. Some of the policy changes included the reversal of Tanzania’s criticized Covid-19 stance, liberalization of the media by lifting bans on newspapers that had been critical of the previous administration, and an end to the six-year ban on public rallies. But the most significant political reform was the President’s reconciliation agenda between the government and the opposition, which opened a possible pathway to a new constitution. In June 2022, the ruling party, Chama Cha Mapinduzi (CCM), which was previously intransigent on the prospects for a new constitution, expressed support for the calls for constitutional reform. While the opposition welcomed the reform initiatives from the President, they demanded a structured process that would be inclusive and deliver tangible reforms.

Taskforce on political reform recommendations

Noting the President’s desire for reforms, the opposition pressed for political dialogue, and initial talks for an inclusive dialogue process began mid-2021 at the Tanzania Centre for Democracy (TCD) – an organization of parliamentary political parties. The TCD, then under the leadership of ACT-Wazalendo party leader Zitto Kabwe, also began to push for an inclusive political dialogue among the political parties. Nevertheless, the political atmosphere of the country was tense, particularly with the chairman of the largest opposition party, Chama Cha Demokrasia na Maendeleo Party (CHADEMA), Freeman Mbowe, in prison facing terror-financing charges.

The Mukandala Taskforce delivered its long-awaited report to the President ... noting that its recommendations were based on a broad consultative exercise with democracy stakeholders.

In December 2021, a multi-stakeholder meeting was convened in the capital Dodoma, which discussed the status of democracy and multiparty politics. With its chairman still in prison, CHADEMA boycotted the meeting. A week after the consultative meeting, the Registrar of Political Parties, Judge Francis Mutungi, announced the formation of a 23-member taskforce that would consider the key issues raised during the stakeholders’ meeting. This taskforce, chaired by Rwekaza Mukandala, a former University of Dar es Salaam professor, included representatives from political parties, academics, civil society, and the Tanganyika Law Society (TLS). On 21 October 2022, the Mukandala Taskforce delivered its long-awaited report to the President in Dar es Salaam, with the Taskforce’s Chairman noting that the report and recommendations were based on a broad consultative exercise with democracy stakeholders.

The Taskforce focused on nine key issues, including the controversial ban on political rallies and internal party meetings, electoral system concerns, the process of reconciliation (key on the President’s agenda), the inclusion of women and other special groups in politics and development, civic education, political and electoral accountability, political party funding, the relationship between political communication and public information, and, finally, the roadmap for a new constitution.

The Mukandala Taskforce report acknowledged the validity of some of the opposition demands and incorporated them into its recommendations. These included establishing an independent electoral commission, allowing political parties to organize public rallies, and revising various laws governing political activity. To ensure the independence of the electoral commission, the Taskforce suggested that the National Electoral Commission (NEC) should not be answerable to any government agency and proposed the creation of an "independent" committee, chaired by the Chief Justice, to vet applications of NEC commissioners. In addition, the report recommended that there should be the facility to challenge the results of a presidential election in court consistent with the July 2020 ruling against Tanzania by the African Court on Human and Peoples’ Rights.  

The Taskforce’s recommended pathway to a new constitution

On the critical question of the pathway to a new constitution, the Taskforce proposed a six-pronged approach. Firstly, a national dialogue should be held to build consensus on controversial issues, such as the nature and structure of the Union between mainland Tanzania and Zanzibar, powers of the president, and the structure of the electoral process. The second step is to update two key pieces of legislation – the Constitutional Review Act (2014) and the Referendum Act (2011) – detailing the process of creating a new constitution. In the third step, the Taskforce proposes that the President appoint a new "panel of experts" to utilize the recommendations from the national dialogue to prepare another constitutional draft, whether new or based on previous drafts. The fourth step is to present this draft to parliament for endorsement. The fifth step is civic education and ultimately, for the final step, the Taskforce recommends a referendum on the draft.

On the critical question of the pathway to a new constitution, the Taskforce proposed a six-pronged approach.

While receiving the report in October 2022, the President appeared to deflate any urgency for democratic reforms, noting the need for more dialogue and consultation before the recommendations can be implemented. President Samia went further to insist that the report from the Taskforce was merely a recommendation similar to other constitutional commissions. The President’s rhetoric sounded a cautionary note, especially given the recent history of disregarding numerous recommendations from constitutional review commissions, most recently from the commission led by former attorney general and prime minister Judge Joseph Warioba.

Genuine or political rhetoric?

Civil society and the opposition have expressed reservations about the proposed path toward a new constitution. They insist that the process should begin with the 2014 Warioba Draft, which they argue was a people’s draft. Since the lifting of the ban on political rallies, the opposition has taken the cause of a new constitution to the people. CHADEMA, the main opposition party, has initiated the Operation +255 New Constitution campaign, aimed at rallying countrywide support for a new constitution.

Since the lifting of the ban on political rallies, the opposition has taken the cause of a new constitution to the people.

There is also movement on the government’s side. President Samia reaffirmed her commitment to delivering a new constitution in March while attending an International Women’s Day event organized by the women’s wing of opposition party CHADEMA. In the same month the government allocated funds to revive the new constitution-writing process and the Minister of Constitutional and Legal Affairs confirmed that his ministry will request a budget increase of up to 9 billion Tanzanian Shillings (3.5 million Euro) to implement the President’s directives in the 2023/24 fiscal year. On 25 March 2023, the government, through the Ministry of Constitutional and Legal Affairs, also announced that plans are underway to review the election laws and the National Elections Commission (NEC), which have been criticized for a long time.

On 6 May 2023, President Samia further showed that her government is committed to a new constitution by directing the Registrar of Political Parties to convene a special Political Parties Council meeting for stakeholders to evaluate the implementation status of the Mukandala Taskforce’s recommendations.

Conclusion

These latest developments on a pathway towards a new constitution have elicited mixed feelings. Based on previous experiences, these efforts could take a political shift and dissipate. There is guarded optimism, especially among the opposition and civil rights movements in the country. Nevertheless, apart from the previous Magufuli administration, all previous administrations have set up some form of constitutional review commission. Second president Ali Hassan Mwinyi appointed the Nyalali Commission to collect views on a new constitution. His successor President Benjamin Mkapa also appointed a commission, led by Justice Robert Kisanga. Despite making  progressive recommendations, the government ignored most of the Kisanga proposals. Under President Jakaya Kikwete, a full-scale Constitutional Review Commission was appointed and again the ruling party and government ignored the majority view, as presented in the Warioba draft constitution. The Constituent Assembly, set up to discuss the Warioba draft, made numerous changes to the text, but with controversial issues such as the structure of the Union and the powers of the president remaining as in the current 1977 Constitution.

Prospects for a new constitution were discarded during the reign of President Magufuli, who even hinted at the possibility of a constitutional change to allow him a third term. The ruling party, CCM, has historically seen a new constitution as a threat to its long-term dominance. Now that it has accepted the winds of change, the opposition and civil society need to push for a people-centered process towards a new constitution. With the 2025 General Election in sight, the government may want to use a new constitution as leverage. The opposition is also angling for the 2025 election by championing the new constitution agenda. Based on previous botched constitution processes, it will be prudent for the opposition to approach this recent concession from the ruling party with caution. With the country needing a new constitution, it is important that a middle ground is reached by building popular consensus rooted in the recommendations put forth by the Mukandala Taskforce.    

Nicodemus Minde is a Senior Lecturer in International Relations at the Catholic University of Eastern Africa, Nairobi, Kenya. 

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Suggested citation: Nicodemus Minde, ‘Tanzania’s pathway to a new constitution: genuine progress or political rhetoric?’, ConstitutionNet, International IDEA, 31 May 2023, https://constitutionnet.org/news/tanzanias-pathway-new-constitution-genuine-progress-or-political-rhetoric

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