KATIBA REVIEW SPECIAL: AWAITING REFERENDUM DILEMMA

Dar es Salaam. It sounds odd to suggest that the just ended constitutional making process awaiting a referendum after passing the proposed Constitution has left the nation in predicament and divided than ever! It is only time that will vindicate this proposition. This is not meant to undermine the content of the proposed Constitution. However, a legal quagmire inherent in the entire process leaves a lot to be desired.  There are legal gymnastics encumbered in the process, especially relating to the envisaged referendum that places the nation in a catch 22 situation.

 
 National Electoral Commission Judge Damian Lubuva addresses a press conference in Dar es Salaam on the voters’ register modality.  PHOTO | FILE

If one poses and examines the entire process one must share a sigh with me…Yes, there is a catch and we are in a catch 22 situation! Before I suggest where the catch is, let me explain what a catch 22 situation is.

Studies suggest that Joseph Heller coined the term in his 1961 novel ‘A Catch 22’. A catch-22 is a paradoxical situation from which an individual cannot escape because of contradictory rules. Catch-22s often result from rules, regulations or procedures that an individual is subject to, but has no control over because to fight the rule is to accept it!

According to the Constitutional Review Act (Cap 83) in section 36(5) of which I beg to reproduce the entire provision here provides that, where the majority of the votes cast in the referendum is “No”, the Constitution of the United Republic of Tanzania, 1977 shall remain in force. `

Therefore, under the said law if the people of United Republic of Tanzania will overwhelmingly vote No for the proposed Constitution, then we are forced legally to go back to 1977 Constitution. Interestingly if the vote is Yes meaning the referendum results have been decided on the basis of support by more than 50  per cent of the total number of votes cast in Mainland Tanzania and more than 50 per cent of the total number of votes cast in Tanzania Zanzibar the proposed Constitution will be adopted. But how different is the proposed Constitution from the 1977 Constitution?

 This question is more relevant not only regarding to the revelation on where the catch is, but also given the unpopular and partisan manner that the proposed Constitution was created following bitter debate, which eventually prompted a division and walkout by some members of the Constituent Assembly. In my opinion, this was clear evidence of the division not only to the members of the Constituent Assembly, but also to the country at large given the assumption that it was alleged that the members of the Constituent Assembly were representing the people of the United Republic! God forbid!

Notwithstanding the fact that the proposed Constitution has an added a bunch of new provisions especially those related to human rights it is in the final analysis the 1977 Constitution with few amendments! Therefore, the option placed on table for the people to vote during the referendum is to either vote YES and we end up with further amended 1977 Constitution and or vote NO and we go back to the 1977 Constitution with no amendments.  This is the catch!

Interestingly pundits suggest that the current regime is pleased with whichever result that the referendum will produce as they both perpetuate the maintenance of the status quo. I am deliberately refraining from discussing what went wrong during the process, but that is also not meant to undermine other positive issues that have come to light as a result of embarking on the constitution making process.

The process in my view has contributed heavily to raising civic awareness, it has demonstrated and revealed political positions of political parties on varied issues and it has also given birth to Ukawa and Tanzania Kwanza movements, which are phenomena in our political landscape. However, unlike the Warioba draft’s a quick observation suggests that the proposed Constitution is yet to be given wide public coverage in terms of its content only three months left ahead to the envisaged referendum, which is unfortunate. However, as pointed earlier this can be explained given the manner in which the proposed Constitution was created which to some extent has affected its political legitimacy. 

Therefore, there is an urgent need for the relevant public authorities and civil society organisations to play a more vigorous role in conducting civic education especially relating to the content of the proposed Constitution against the 1977 Constitution and probably the Warioba draft.  I understand that organisations like Mwalimu Julius Nyerere Foundation, Legal and Human Rights Centre and Tanganyika Law Society to name, but a few are doing their best given their limited resources, but it is crucial for the civil societies organisations to create coordination and set out an agenda as it is not proper to leave alone political parties to lead the process of campaign towards the referendum as the obvious danger is that the political parties are fixed into their political manifesto.

The author is a High Court advocate/legal consultant and a member of Tanganyika Law Society.