Tanzania’s Constitution Could Be Approved in April, Is That Enough Time?

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Written by Andrew Friedman

As we previously reported here on AFKInsider, Tanzania has hit an important milestone in its road to a new constitution. Earlier this month, a draft was presented to the country’s President, Jakaya Kikwete, along with Ali Mohamed Shein, the President of the semi-autonomous Zanzibar region for their approval. The two approved, and now the only thing standing between the East African country and a new supreme legal document is approval by the people at referendum. Earlier this week the country’s Attorney General, Frederick Werema set the date for that referendum at April 30, as reported by the AFP.

The document itself has received mixed reviews. Much of the international community has lauded the tremendous steps the constitution takes towards gender equality, including a provision providing for equal representation in all decision making bodies including parliament and constitutionally mandated land ownership rights for Tanzania’s women, trumping previous traditional law that forbade it, the reception in the country has been less unanimous.

However, the country’s opposition, led by the Chadema party, that had walked out of the drafting process, quickly decried the document and the proposed referendum date. The group said that the new constitution will change very little, thus making the entire process a waste of resources. Chadema’s Secretary General also called the proposed referendum date a direct violation of an agreement last month between Kikwete and the Tanzania Centre for Democracy (TCD), a non-partisan democracy promotion group, that would have pushed the referendum until after elections in October of 2015.

For their part, Kikwete’s CCM party has issued mixed messages, previously announcing that the referendum would take place after the general elections, now reversing course, saying that the agreement with the TCD was one “in honor and not legally binding.”

While it may seem like an inane detail after the difficult work of drafting a constitution, the referendum date is an immensely important part of promulgation of a constitution. The reasons are twofold.

First, the time period between the presentation of a final document and referendum is important as too short a period will not allow the populace to become informed on its contents, thus keeping individuals from informed voting and leaving the process dangerously opaque.

Second, while it does not seem to be the case in Tanzania, in many countries term limits have not been applied retroactively, meaning that a new constitutional regime can be used as a pretense for a President who would otherwise not be allowed to run again, to run again. This raises some eyebrows, as Kikwete is not allowed to run again in October due to term limits.
Let us start with the first issue and how it applies to Tanzania.

Simply put, it takes a long time to inform a populace about the complex, legal contents of a constitution. This type of information is vital for the population to make an informed decision on passage. This problem is compounded by an impoverished citizenry with a relatively low literacy rate.

An April 30, 2015 referendum date allows for six months of education on the document. However, the official campaigning does not begin until the end of March, leaving only a month. This will leave much of the task to civil society to inform Tanzanians on the contents of the new constitution so they can make an informed decision.

While six months is not a long time period in the world of constitutional drafting, it does compare favorably to intentionally opaque processes elsewhere on the continent.
Consider, for example, Zimbabwe’s newest constitution from 2013. After the document was completed on February 6, 2013, a referendum was scheduled for March 16.

When this was challenged by the National Constitutional Assembly, a judge and political ally of President Robert Mugabe ruled that the referendum would go ahead as scheduled. This led to allegations that the government was intentionally keeping the populace in the dark on the contents of the new document, a troubling development for the promulgation of a constitution. These allegations were compounded by strict civil society laws that kept groups from holding informational sessions.

While there have been no allegations of intentionally keeping Tanzanians uninformed, the six month period is problematic in Tanzania due to a requirement that before the referendum voting rolls be updated. This is one of the major complaints of the opposition and the National Election Commission has yet to announce a time frame for the update.

The second worry that is often associated with referenda intentionally placed before general elections is the use of a new constitution as a pretense to avoid term limits. As we have previously discussed in great detail, the extension of term limits is a tool of dictatorial governance that has disproportionately afflicted the African continent. While there is no allegation that President Kikwete is attempting to change the constitution to extend his own rule and proponents of the April 30th referendum simply say that it would be better for a new constitution to be in place before a new President is elected, this has been a tool of too many leaders.

Going back to Zimbabwe’s most recent constitutional change, in a move heralded by Mugabe’s critics, the constitution for the first time included term limits. Unfortunately, however, these limits specifically did not apply retroactively. Thus, the Zimbabwean President, who had already spent the better part of his adult life, more than three decades, leading the South African state, would be entitled to two more terms that would end when the aging despot is 99.

While there are no such allegations in Tanzania, whenever constitutional referenda are moved to be before general elections, it gives constitutional scholars pause.

As we have previously discussed here, there are many important advancements in the new Tanzanian constitution. That includes tremendous gains for women’s rights. While an April 30th referendum day will be difficult to meet, both to ensure an informed populace and to update the country’s voter registry, the advancements made for women’s rights will be an important legacy. It is unfortunate that the date was changed after an agreement with civil society, but it does not automatically imply foul play or malfeasance. The country’s civil society must work to ensure an informed populace and keep the process from becoming more unilateral and opaque.

Andrew Friedman is a human rights attorney and consultant who works and writes on legal reform and constitutional law with an emphasis on Africa. He can be reached via email at afriedm2@gmail.com or via twitter @AndrewBFriedman.