On-line version ISSN 1609-073X
Afr. hum. rights law j. vol.9 n.1 Pretoria 2009
Senior lecturer, Faculty of Law, University of Dar es Salaam, Tanzania
This is a review of the impact of the drastic reforms in 1992 on Tanzania's constitutional and socio-political scene, specifically upon the right to freedom of political participation. Using a historical perspective, the article traces the origins of the present failures and successes in this regard in order to test whether the law meets the requirements of constitutionalism and international standards. It debates the issue as to whether in practice the one-party political system allowed free and unimpeded participation in the public decision making. It is argued that this legacy has not been done away with by the post-1992 reforms. It asks the question as to whether the National Electoral Commission is really independent and free of influence and dictation by the government. The amendments of the relevant constitutional provisions and other laws have added to the establishment of the Commission's de jure independence. Nothing has been done by the government to date, following a report of the Presidential Committee on the Constitution (Kisanga Committee) of 1999, to make the Commission de facto independent, even to a limited extent. Similar questions have been asked relating to other elements of political participation, such as the right to effective participation and the need to hold a constitutional conference leading to a new Constitution and allowing independent candidates in all elections in Tanzania. In this regard the government has not done enough, despite consistent pressure and campaigns from political parties and other civil society institutions. Lastly, the prospects for genuine political reforms are debated, acknowledging only limited success.
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* LLB (Hons), LLM (Dar es Salaam), Postgraduate Diploma in International Law and Organisation for Development (Institute of Social Studies, The Hague, Netherlands), PhD in Law (Warwick, England); firstname.lastname@example.orgemail@example.com
1 E Berner & B Phillips 'Participation: Opportunity, burden or ritual?' (2005) 7 Development Issues 7. [ Links ]
2 K Biekart 'Participation in development studies: Towards mainstreaming' (2005) 7 Development Issues 6. [ Links ] See also B Cooke & U Kothari The new tyranny (2001). [ Links ]
3 M Buchy 'Let's keep transformative participation on the agenda' (2005) 7 Development Issues 10. [ Links ]
4 See generally O Gye-Wado 'A comparative analysis of the institutional framework for the enforcement of human rights in Africa and Western Europe' (1990) 2 Africa Journal of International and Comparative Law 187; [ Links ] R Higgins The development of international law through the political prgans of the United Nations (1963); [ Links ] J Humphreys 'The international law of human rights in the middle twentieth century' in J Bos (ed) The present state of international law (1973); [ Links ] S Kaballo 'Human rights and democratisation in Africa' (1995) 43 Political Studies 189-203 199-200; [ Links ] H Kanger Human rights in the UN Declaration (1984); [ Links ] T Maluwa 'Discourses on democracy and human rights in Africa: Contextualising the relevance of human rights to developing countries' (1997) African Journal of International and Comparative Law 9; [ Links ] AH Robertson & JG Merrils Human rights in the world - An introduction to the study of the international protection of human rights (1993); [ Links ] IG Shivji The concept of human rights (1989); [ Links ] W Tieya 'The third world and international law' in R St J MacDonald & Dm Johnson (eds) The structure and process of international law (1986). [ Links ]
5 See Berner & Phillips (n 1 above) 9.
6 See M Wambali 'The historical overview of constitutional reforms towards limited leadership in Tanzania' (2008) 34 Commonwealth Law Bulletin 2. [ Links ]
7 See eg CM Peter & F Kopsieker (eds) Political succession in East Africa: In search for a limited leadership (2006). [ Links ]
8 See sec 4 of Act 34 of 1994. Sub-sec (1) thereof was amended following a judicial ruling that we will deal with in detail in this paper. For purposes of clarity of argument and understanding of the constitutional developments involved, we proceed here to discuss the replaced provision.
9  TLR 31 (Mtikila case).
10 Neither the Kenyan Bill of Rights (ch 5 of the Constitution of Kenya) nor that of India (ch 3 of the Constitution of India) provides for the right to political participation.
11 The influence of international human rights standards in the Constitution of the United Republic of Tanzania can also be seen in other areas, especially arts 9(a) and (f), which refer to the relevance of the provisions of the Universal Declaration of Human Rights, 1948, to the Fundamental Objectives and Principles of State Policy, which invariably guide the interpretation of the Bill of Rights and the Constitution as a whole.
12 n 8 above.
13 See the CCM Guidelines (1982).
14 Now replaced by sec 5 of the 9th Constitutional Amendment Act 1992, which amended art 39 to add to the citizenship requirement, citizenship by naturalisation, subject to the concerned contestant satisfying the condition of having prior to standing for such elective office, been resident in the United Republic for 15 years or more.
15 Author's translation of the original Kiswahili version.
16 Hansard (1992), Majadiliano ya Bunge - Taarifa Rasmi: Mkutano wa Saba - 28 Aprili - 8 Mei 1992, Part I, Dar es Salaam: Bunge Press - Government Printer 130.
17 Hansard (n 16 above) 130-1.
18 n 9 above.
19 n 9 above, 21-25.
20 n 9 above, 41.
21 n 9 above, 42.
22 Borrowing support from Lord Diplock's dictum to that effect in Attorney-General of The Gambia v lobe  AC 689;  3 WLR 174;  LRC (Const) 556.
23 Author's English translation of the original Kiswahili version.
24 Sec 13 of Act 34 of 1994, mentioned above, amended sub-art (2) of art 67 by adding thereto a new clause (e), providing thus: 'Without interfering with the right and freedom of a person to hold his own opinions, to believe in the religion of his own choice, to co-operate with others and to participate in the public activities in accordance with the laws of the land, if such person is not a member and contestant sponsored by a political party.'
25 JK Nyerere Our leadership and the destiny of Tanzania (1995) 9. [ Links ]
26 Miscellaneous Civil Cause 10 of 2005, Dar es Salaam Main Registry  TZHC 5 (Saflii).
27 IG Shivji 'Constitutional limits of parliamentary powers' (2003) The Tanzania Lawyer 39. [ Links ]
28 n 9 above.
29 My emphasis.
30 See the 7th Proposal in the Report of the Presidential Committee for the Collection of Views on the Constitution, Book One on 'The views of the people and the Committee's advice thereon' Dar es Salaam: Ministry of Justice and Constitutional Affairs (1999).
31 See art 107A of the Constitution of the United Republic of Tanzania, 1977 (as re-enacted by sec 16 of the Fourteenth Constitutional Amendment Act 2005).
32 See Elections (Amendment) Act 6 of 1992.
33 See art 74 of the Constitution of the United Republic of Tanzania as amended by Act 4 of 1992.
34 The position was established by sec 6 of the Elections Act 1985, as amended by sec 7 of the Elections (Amendment) Act 1992. The other amendments to the Act are not relevant to the discussion here.
35 Nyalali Commission Report (1991), Tume ya rais ya mfumo wa chama kimoja au vyama vingi vya siasa Tanzania: Taarifa ya mapendekezo ya tume kuhusu mfumo wa siasa nchini Tanzania, Kitabu cha Kwanza, (Dar es Salaam: President's Office, United Republic of Tanzania) 141 para 593. Author's English translation of the original Kiswahili version.
36 JL Mwalusanya 'Conditions for the functioning of a democratic constitution' in CK Mtaki & M Okema (eds) Constitutional reform and democratic governance in Tanzania (1994) 27-28. [ Links ]
37 As above.
38 High Court Civil Case 168 of 1993, Dar es Salaam Registry (unreported) (Marando case).
39 As above.
40 Relying on the interpretation of a similar situation by the European Court of Human Rights in the case of Campbell and Fell v United Kingdom 7 EHRR 165.
41 A typical example was the defection from the CCM to the NCCR-Mageuzi party of the populist former Deputy-Prime Minister and Minister of Home Affairs, Augustin Lyatonga Mrema, after having been demoted in December 1994 by President Alli Hassan Mwinyi for lack of discipline and a breach of the principle of collective responsibility in the National Assembly, to a mere Minister of Labour and Social Welfare, thereby raising the political fortunes of the NCCR-Mageuzi party to unprecedented heights.
42 IPS News 'Tanzania politics: Oppostition takes election battle to court', report by Paul Chitowa & Anaclet Rwegayura, Dar es Salaam, 1 November 1995. [ Links ]
43 Refer to the Official Statement of the National Electoral Commission in (Radio Tanzania Dar es Salaam) (1995), broadcast on 8 November 1995.
44 M Bakari 'Single party to multi-partysm in Tanzania: Reality, challenges and lessons' in Peter & Kopsieker (n 7 above) 55 60.
45 Other recommendations of the Nyalali Commission were the restructuring of the Union into a truly federal structure of three governments; the formation of a constitutional commission which would draft a constitution to be presented to the public for discussion and approval; repealing and amending laws that restrict freedom of association - about 40 laws were singled out for the exercise; the provision of civic education; the establishment of three independent electoral commissions, one for the union government, one for the mainland and one for Zanzibar; and a mixed electoral system - PR using the additional member system, etc. See Peter & Kopsieker (n 7 above) 61.
46 Refer to Mr Raila Odinga's statement in a telephone interview during a TVT Tuambie Programme on 3 January 2008, Dar es Salaam: Tanzania Broadcasting Corporation. Ultimately the conflict, which left over 1 000 people dead and many more injured and displaced, ended with the formation of a coalition government under which Mr Odinga, holding the newly-created position of Prime Minister, shares some executive powers with President Mwai Kibaki.
47 SEA Mvungi 'Democratic constitution making and the transition to multi-party democracy in Tanzania' in GM Fimbo & SEA Mvungi (eds) Constitutional reforms for démocratisation in Tanzania (1993) 23. [ Links ]
48 CHADEMA, NCCR-Mageuzi and NLD.
49 See the Recommendations of the Seminar on the Constitutional Reforms for Democratisation in Tanzania' held in the British Council Conference Hall, Dar es Salaam, 27-28 November 1992, reproduced in Fimbo & Mvungi (n 47 above).
50 Also in Mwalimu Paul John Mhozya v Attorney-General (No 2) 1996 TLR 229 (HC).
51 The other members were Mr Salim Juma Othman as Vice-Chairperson, the late Mr Siegfried KB Lushagara as Secretary, Mr Wilson Mukama, Mrs Moza Himid Mbaye, Mrs Dr Asha-Rose Migiro, Mr Issa Machano, Mrs Mary Chipungahelo, Mr Ali Abdallah Suleiman, Dr Maxmillian Mmuya, Mrs Salma Masoud Ebrahim, Mr Yahya B Msulwa, Dr Said Ghalib Bilal, Dr John Magoti, Mr Hassan Said Mzee and Mr Mohamed Balla.
52 See the Kisanga Committee Report (KCR) (1999), Report of the Presidential Committee for the Collection of Views on the Constitution, Book One on 'The views of the people and the Committee's advice thereon' Dar es Salaam: Ministry of Justice and Constitutional Affairs, Government Printer.
53 Bakari (n 44 above) 55 60.
54 KC Wheare Modern constitutions (1966); [ Links ] DD Basu Comparative constitutional law (1984); [ Links ] BO Nwabueze Constitutionalism in emergent states (1973). [ Links ]
55 Berner & Phillips (n 1 above) 9.
56 GM Fimbo Tuijadili Katiba: Katiba Ya Jamhuri Ya Muungano Wa Tanzania (2007). [ Links ]
57 See, generally, A Seidman & R Seidman State and law in the developing process: Problem solving and institutional change in the third world (1994). [ Links ]
58 IG Shivji 'The politics of liberalisation in Tanzania: Notes on the crisis of ideological hegemony' in H Campbell & H Stein (eds) Tanzania and the IMF - The dynamics of liberalisation (1992). [ Links ]